City of Drumright v. Mccormick

• Decision Date: 06 April 1926
• Docket Number: Case Number: 16596
• Citation: 1926 OK 308,118 Okla. 140,247 P. 25
• Parties: CITY OF DRUMRIGHT v. McCORMICK.
• Court: Oklahoma Supreme Court

1926 OK 308

247 P. 25

118 Okla. 140

CITY OF DRUMRIGHT v. McCORMICK.

Case Number: 16596

Supreme Court of Oklahoma

Decided: April 6, 1926

Syllabus

¶0 1. Municipal Corporations--Sewer Improvements--Abutting City Property Assessable for Benefits but not Subject to Lien. Where a city, by its duly constituted governing body, establishes a "sewer district, adjoining to or upon which the city's property abuts, and such property is under the law properly assessable for the benefits flowing therefrom and sewer warrants are issued against such property, the owner or holder of such warrants cannot enforce his lien against such public property and cause the same to be sold for such special tax."

2. Same--Personal Judgment Against City as Remedy of Holder of Sewer Warrants. Where a city establishes a sewer district adjacent to public property, and levies a special assessment against such property and issues its public improvement warrants against the property assessed for such improvements, an action for personal judgment against such city is maintainable by the holder and owner of such warrants.

S. A. Denyer, for plaintiff in error.

Leroy J. Burt, for defendant in error.

RUTH, C.

¶1 Plaintiff and defendant will be referred to as they appeared in the trial court. Defendant, by regular proceedings as provided by the laws of the state, established a sewer district in the city of Drumright, and the contract for the construction of the sewer was entered into between plaintiff and defendant, and plaintiff proceeded to construct his sewer and the work was formally accepted by the city. This sewer was constructed adjacent to, and was intended to serve, lots 1 to 24, inclusive, in block 35, M. Jones addition to the city of Drumright, and lots 14 and 15 in block 1, Broadway addition to said city, and other lots not involved in this action. The warrants issued against the lots here involved aggregated $ 2,356.83, and provided for 8 per cent. interest, and were payable in three equal payments, one-third due December 15, 1919, one-third due December 15, 1920, and one-third due December 15, 1921. The defendant, prior to the issuance of the warrants, accepted a deed to these lots from M. Jones, for park purposes, the deed containing the following clause:

"Yet, however, upon the following condition: that is to say, if the said premises shall at any time cease to be used as a children's playground, or city park, the title thereto shall revert in the grantor, and the title of grantee cease and determine."

¶2 This deed included all of block 35, M. Jones addition (being lots 1 to 24, both inclusive), and was executed and delivered June 23, 1919, and defendant caused the same to be duly recorded on June 30, 1919. The record does not disclose how defendant acquired title to lots 14 and 15 in block 1, Broadway addition, but it is not denied that defendant is the owner thereof. On July 15, 1923, there was due on said warrants, principal and interest amounting to $ 2,867.65, for which sum plaintiff prays judgment, plus 8 per cent. interest from the last said date. M. Jones and wife and others were subsequently made parties defendant, M. Jones having a reversionary interest in the lands. Defendant filed its answer, which contained a demurrer to "that portion of plaintiff's petition and amended petition wherein plaintiff prays for personal judgment against the defendant city," and the answer further contains a general denial. It developed that a two-fifths interest in this land was owned by two full-blood Indian heirs, which interest was sold to George Pelsey, who was made a party defendant by amended petition. The cause was tried to the court without the intervention of a jury. The amount then due, including principal and interest, was $ 2,921.04, and plaintiff was awarded judgment for three-fifths of this amount, or $ 1,750.60, and defendant city of Drumright appeals and assigns as error:

"That the evidence is insufficient to base a judgment upon, for two reasons: (A) That the court found the lots were controlled, in possession of, and used by the city of Drumright, and (B) the evidence is insufficient for that it does not show the plaintiff was deprived of the right to take the property to satisfy his lien thereon."

¶3 Defendant admitted in open court it received and accepted and recorded the deed, but that sometime thereafter (about 6 months) it discovered the defendant Palsey owned a two-fifths interest, and it, the city, decided not to do anything with or make any use of the property, and offered to execute a quit-claim deed to the property to the plaintiff. This constitutes the defense of the defendant. It is tacitly conceded that the real property of a municipal corporation cannot be sold at a forced sale for taxes levied against it by reason of a special assessment for public improvements, but defen...