City of Indianapolis v. Patterson
| Decision Date | 29 November 1887 |
| Docket Number | 12,728 |
| Citation | 14 N.E. 551,112 Ind. 344 |
| Parties | The City of Indianapolis v. Patterson |
| Court | Indiana Supreme Court |
From the Marion Superior Court.
The judgment is reversed, at appellee's costs, and the cause is remanded, with instructions to award a a new trial sustain appellant's demurrer to the first paragraph of appellee's reply, and to proceed in accordance with this opinion.
C. S Denny and W. L. Taylor, for appellant.
E. A Parker, for appellee.
Appellee brought this action to recover an amount paid by her to the city as taxes, assessed upon her land, and to enjoin the further collection of taxes theretofore assessed, and, also to enjoin the further assessment of taxes upon the land. The facts, as shown by the pleadings and the special finding of facts, are, in substance, as follows:
On the 24th day of May, 1860, appellee was the owner in fee simple of eighteen acres of land in one body adjoining the corporate limits of the city of Indianapolis. On that day, she and her husband, Samuel J. Patterson, executed and acknowledged, in proper and legal form, a plat of eleven acres of the land as Samuel J. Patterson's addition to the city of Indianapolis, subdividing the land thus platted into small lots, streets and alleys. The plat was recorded in the proper plat-book in the office of the county recorder.
Appellee thought that the remaining seven acres of her land were included in the plat, it being her intention and desire to subdivide the whole of her land into city building lots, with the proper streets and alleys.
On the 31st day of December, 1868, Samuel J. Patterson, appellee's husband, without her knowledge or consent, executed, acknowledged and caused to be recorded a plat of the remaining seven acres of her land into lots, streets and alleys, "accurately fitting into and corresponding with" the lots, streets and alleys in the subdivision of May 24th, 1860. The lots in the two plats were so numbered that there were no duplicates, but numbered consecutively through the two additions. The last plat, made by the husband alone, as above stated, was designated in the explanation thereon as "Patterson's extended addition" to the city of Indianapolis. In the explanation, also, it was recited that the plat was made as an extension of the plat of 1860, and reference was made to the plat-book in which that plat was recorded for a more particular description of the plat then executed by the husband.
Upon the seven acres thus platted by the husband appellee has resided with her family for many years, using the land for agricultural purposes, both before and since the platting.
On the 17th day of December, 1871, the common council of the city of Indianapolis passed a resolution in terms annexing said plats, subdivisions and lots to the city, and caused a certified copy of the resolution to be recorded by the county recorder in the proper record book. For the year 1872, and subsequent years, including the year 1882, the city assessed all of the lots in the two plats as lots in "Patterson's addition," and collected the taxes so assessed, the payments being made in April of each year succeeding the year for which the lots were assessed. The taxes were voluntarily paid, but appellee paid them, or caused them to be paid, in the belief that the lots upon which they were assessed had been included in the plat of 1860, which she acknowledged, and had been legally annexed to the city, and that they would be sold if the taxes were not paid.
On the 28th day of May, 1873, appellee and her husband executed a warranty deed to Fanny A. Patterson for five lots, and on the 18th day of October, 1877, executed a warranty deed to Elizabeth Riley for three lots. The lots were described in the deeds as in "Patterson's addition." In fact, they were in the addition as laid out by the husband in 1868. On April 4th, 1881, appellee and her husband mortgaged to the State for the use of the school fund lots 2, 3 and 4 in the addition of 1860, and lot 48 in the addition platted by the husband in 1868. The lots were described in the mortgage as in Samuel J. Patterson's addition, and as a part of the description of the lots reference was made in the mortgage to the book and page where the plat made by the husband in 1868 was recorded.
By order of the common council in 1873, and at the expense of adjoining lot-owners, one of the north and south streets, which, according to the plats, extended through both additions, was improved through the whole of the addition platted in 1860, and through a small portion of the addition as platted by the husband in 1868.
Appellee's husband died on the 25th day of May, 1883. She commenced this action on the 16th day of May, 1884, having, on the 21st day of the preceding April, made a demand upon the city for a refunding of the taxes paid as above stated.
The common council of a city in this State has authority, without the consent of the owner, to annex territory, and extend its boundaries so as to include lots laid off and platted adjoining the city, if the plat has been acknowledged and properly recorded in the recorder's office of the county, but not otherwise. This is so well settled that it is not necessary to do more than cite the statute and some of the cases: R. S. 1881, section 3195; Taylor v. City of Fort Wayne, 47 Ind. 274; Strosser v. City of Fort Wayne, 100 Ind. 443.
It is equally clear that one person can not lay off and plat the land of another, so as to give the city jurisdiction to annex it by a resolution of its common council. The platting, laying off and acknowledging of the plat must be by the owner of the land, or by some one legally authorized so to do for the owner. A man can no more lay off and plat his wife's land, without proper authority from her, than can he the land of a stranger. He can neither sell nor encumber his wife's land by his separate act. R. S. 1881, section 5128. Nor can he, by laying it off and platting it, dedicate a portion of it to streets and alleys, and thus, indirectly, subject the remainder of it to the burdens of city taxation.
As will be observed from the statement of facts above given, appellee and her husband in 1860 made a legal plat of eleven acres of her land. That plat was acknowledged by her and properly recorded. The lots in that addition were properly annexed to the city by the resolution of its common council. No question is made as to the legality of that plat, nor as to the annexation of the lots in that addition.
The controversy is as to the remaining seven acres, upon which appellee has all the while lived, and which she has used for agricultural purposes. That land has never been laid off or platted by her. In 1868 her husband laid it off and platted it as an extended addition, and caused the plat to be recorded; but he did it without any authority from her, and without her knowledge.
The court below found, as facts, that at the time appellee with her husband made and acknowledged the plat of 1860, she desired that the whole of her eighteen acres of land should be included, and thought that it was. But neither her desire in that regard, nor her mistake as to the fact, authorized her husband to lay off and plat the seven acres in 1868.
Suppose that, instead of the plat of 1860, appellee and her husband had made a deed to consummate a mere gift of her land, and that at that time she desired to give the whole of her land, and supposed that the whole of it was included in the deed, would those facts alone have authorized the husband to deed to the same person in 1868, without her authority or knowledge, the seven acres not included in the deed of 1860? Clearly not. The case supposed and the case in hand are parallel in all essentials. The donee in the deed of 1860 could not have compelled appellee to afterward make a deed for the seven acres which she supposed were included in the deed of 1860. Neither could the city compel her to lay off and plat the seven acres of land omitted from the plat of 1860, simply because she at that time desired that it should be, and thought that it had been, included in the plat of 1860. And as appellee could not be compelled to make a plat of the seven acres, so she is not estopped to dispute the validity of the plat of that land made by her husband, without her knowledge, in 1868.
After that plat was made, she joined with her husband in a mortgage upon some of the lots therein described, and also made deeds for others; but the lots were described as in Patterson's addition, and not as in Patterson's extended addition, the name given by the husband to the addition platted by him in 1868. And, moreover, at the time she executed the conveyances, she was yet ignorant of the fact that the husband had made a separate plat, and yet supposed that all of the land was included in the plat acknowledged by her in 1860. It is not shown that any of the conveyances worked any sort of injury to the city, or to any one else.
During all the years in which she paid the taxes, she supposed that the land had all been platted in 1860, and paid them under that mistake of facts.
The city improved a street through the addition platted in 1860, and for a short distance into the addition as platted by the husband in 1868, but it is not shown that appellee asked for such an improvement, or that she knew that it was being made. The evidence shows that the lots deeded away by appellee were deeded to her children, and that they asked for the improvement, which was made in front of their lots, and not in front of the land owned by appellee. Moreover, the city expended no money in the improvement of the street. The improvement was made wholly at the expense of the adjoining lot-owners.
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