Cadmus v. Fagan

• Decision Date: 30 November 1885
• Citation: 4 A. 323,47 N.J.L. 549
• Parties: CADMUS and another, Ex'rs, v. FAGAN
• Court: New Jersey Supreme Court

4 A. 323

47 N.J.L. 549

CADMUS and another, Ex'rs,

v. FAGAN

Court of Errors and Appeals of New Jersey.

November Term, 1885.

Action on covenant against incumbrances contained in deed of lands in the city of Bayonne, dated September 26, 1878, tried in the Hudson circuit court, without a jury, upon the following agreed facts: An assessment for the opening of a street was laid upon the lands, and confirmed September 28, 1871, and remained unpaid at the date of the deed. The validity of the assessment was brought before the supreme court in 1877 by certiorari, and on November 12, 1877, the assessment was set aside as to the prosecutors of the writ, and on June 14, 1878, as to all persons affected. The supreme court, at the same time as the latter order, appointed commissioners to impose a new assessment. The new assessment was made, and was confirmed on March 21, 1879. It was agreed that the plaintiff should be considered to have paid the latter assessment on June 19, 1883. Writ of error by the defendant below.

Peter Bentley, for plaintiffs in error.

Parmly, Olendorf & Fisk, for defendant in error.

MAGIE, J. The conclusions reached by the supreme court in its advisory opinion were (1) that the covenant on which the action was brought was broken when made, by the existence of the original assessment unpaid; and (2) that the plaintiff below (the defendant in error) was entitled to recover not merely nominal but actual damages, measured by the amount agreed to have been paid on the assessment imposed after the vacation of the original assessment.

The correctness of the first conclusion has not been and cannot be disputed.

The second conclusion is the point of contest and error complained of in this case. The result in that respect reached so accords with my view of the case that I should be content to vote to affirm this judgment without comment, but for the fact that it appears to have been grounded on reasons with which I find myself unable to agree. The question presented for solution related to the status of an assessment imposed after the vacation of a former assessment. If the reimposed assessment became an incumbrance only from its determination or confirmation, then only nominal damages were recoverable, for the incumbrance which caused the breach had been wholly vacated. But if the reimposed assessment related back as an incumbrance to a time prior to the covenant, then its payment was the payment of an incumbrance covered by the covenant, and the amount paid would measure the damages to be recovered.

The supreme court adopted the last-mentioned proposition, but in the opinion it was declared that the reimposed assessment related back, as an incumbrance, not to the date of the first assessment, but to the time when the work for which the asssessments were made was completed.

Cases from the courts of Massachusetts were cited and relied on as sustaining that doctrine, and it was on this ground that it was adjudged that the payment of the last assessment was the payment of an incumbrance existing at the date of the covenant.

It is from this portion of the opinion that I feel constrained to dissent. To adopt the doctrine there enunciated, as establishing the correct rule for determining the time when the lien of such assessments attaches to land, under the provisions of such charters as that of the city of Bayonne, would, in my judgment, be opposed to a proper construction of those provisions. It is completely settled that taxes, whether general, or specially imposed by reason of peculiar benefits conferred by a public improvement, become liens on land only by virtue of express legislation. The power to impose the lien necessarily includes the power to limit its extent and duration. Cooley, Tax'n, 305; Heine v. Levee Com'rs, 19 Wall. 655; State v. Paterson, 42 N. J. Law, 615; Johnson v. Van Horn, 45 N. J. Law, 136.

The first question, therefore, must be, what has the legislature prescribed? The legislative intent to impose the tax as a lien must appear. The extent and duration thereof may be expressly declared; or, in the absence of express declaration, inferred from the language of the acts or their general scope. The charter of Bayonne, after prescribing the mode in which the commissioners of assessment should make up and present to the board of councilmen an assessment of this sort, declares that "if said board of councilmen shall, by resolution, confirm said assessment, it shall constitute a lien on the property assessed for the amount of such assessment." Laws 1869, p. 371, § 58. In this respect, the provisions of this charter are similar to those of other municipalities, and identical with many.

Applying to such clauses the ordinary rules of construction, I think we are driven to the conclusion that the legislative intent is thereby, either expressly or by a persuasive and necessary implication, shown to be that the lien of the assessment should attach at the date of its confirmation. In the face of this expression, I conceive it to be impossible to hold that the time when the lien should attach was left to an implication to be deduced from the general scope of the legislation. If left to such a deduction, it seems to me we should be forced to hold that the lien attached when the work...