Cemansky v. Fitch

• Decision Date: 10 October 1903
• Parties: GEORGE CEMANSKY v. HENRY A. FITCH, Appellant
• Court: Iowa Supreme Court

96 N.W. 754

121 Iowa 186

GEORGE CEMANSKY v. HENRY A. FITCH, Appellant

Supreme Court of Iowa, Des Moines

October 10, 1903

Appeal from Woodbury District Court.--HON. WILLIAM HUTCHINSON Judge.

ACTION for damages resulting from an alleged breach of the covenants contained in a warranty deed. From judgment against him, the defendant appeals.

Reversed.

Hubbard & Burgess for appellant.

Shull & Farnsworth for appellee.

OPINION

LADD, J.

The defendant was owner of lot nine of block seven in Sioux City and on the 22d day of January, 1900, conveyed it to the plaintiff by warranty deed, covenanting perfect title, "free and clear of all liens and incumbrances," and "to warrant and defend the title to said premises against the lawful claims of all persons whomsoever." Prior, thereto, in September, 1899, the city council had ordered the construction of a cement sidewalk in front of the lot, and, as the owner did not build it, had caused it to be constructed in November of that year. In August following, the council assessed the cost against the lot, and a transcript of the entire proceedings, duly certified by the city clerk, was filed with the county auditor. Such cost was duly entered on the books of the auditor and treasurer as a tax against the premises. The defendant having refused to satisfy the same, the plaintiff paid the amount assessed, being $ 98.38, including interest and penalties. The defendant demurred to a petition stating these facts. The court held that they established a breach of the covenants contained in the deed, and rendered judgment accordingly.

It is to be noted that the sidewalk had been constructed about two months before the execution of the deed, but that the certified transcript of the proceedings was not filed until about seven months afterwards. The regularity of the proceedings is not questioned, and the sole issue to be determined is whether liability for the cost of the improvement attached to the lot prior to the execution of the deed.

Special assessments do not become liens save as so made by statutory authority. Eagle Mfg. Co. v. City of Davenport, 101 Iowa 493, 70 N.W. 707. Formerly they became such when the work began. To obviate the difficulty of determining by parol evidence precisely when this happened, and in order to indicate the attachment by an appropriate record, section 816 of the Code was enacted, pointing out how and when the cost of such an improvement might be made a lien on the abutting property: "After a contract has been made by any city for the making or reconstruction of any street improvement or sewer, the clerk shall file with the auditor of the county, or each of the counties, in which said city is situated, a written or printed copy of the notice of the resolution provided for, with a true copy of the proof of publication thereof, together with a certificate of the clerk that an ordinance or resolution has been adopted directing the making or reconstruction of said street improvement or sewer. Thereupon all special taxes for the cost thereof, or any part of said cost, which are to be assessed or levied against real property, or any railway or street railway, together with all interest and penalties on all of said assessments, shall become and remain a lien on such property from the date of the filing of said papers with the county auditor until paid, and shall have precedence over all other liens except ordinary taxes, which shall not be divested by any judicial sale; but such liens for street improvements in case of abutting property shall not cover to exceed one hundred and fifty feet in depth from the abutting line. Any such assessment against a railway or street railway shall be a first and paramount lien upon track thereof within the limits of the city."

Doubtless if the improvement were never actually made the proposed lien would fail, but if, after being contracted for, the work is completed, it will attach, and relate to the date of filing with the county auditor a copy of the notice of the resolution of the city council, with a true copy of the proof of publication of notice thereof,...