City of Jackson v. Kenny

• Court: Mississippi Supreme Court
• Writing for the Court: HOLDEN, J.
• Citation: City of Jackson v. Kenny, 84 So. 689, 122 Miss. 594 (Miss. 1920)
• Decision Date: 14 June 1920
• Docket Number: 21155
• Parties: CITY OF JACKSON v. KENNY et al

84 So. 689

122 Miss. 594

CITY OF JACKSON v. KENNY et al

No. 21155

Supreme Court of Mississippi

June 14, 1920

March 1920

1. MUNICIPAL CORPORATIONS. Assessment against lot necessary before lien exists.

Under section 3413, Code of 1906, no lien attaches against the abutting property for cost of sidewalks laid by the city unless its minutes show the construction was ordered, the exact amount of the cost, and that the amount due was assessed against the abutting lot.

2. MUNICIPAL CORPORATIONS. City, receiving owner's note with improvement lien, cannot recover against subsequent bona fide purchaser.

Even though note with lien is given to the city by the abutting owner for the cost of the sidewalk at the time of construction, yet no recovery can be had against the lot by the city when owned by a subsequent purchaser for value without notice.

HON. W H. POTTER, Judge.

APPEAL from the circuit court of Hinds county, HON. W. H. POTTER Judge.

Suit by the city of Jackson against F. W. Kenny and others to enforce an improvement lien. Judgment for defendants, and plaintiff appeals. Affirmed.

Judgment affirmed.

W. E. Morse, for appellant.

Section 3413 is essentially different from 3411, 3412, in that section 3413 does not require a special assessment before the city can enforce this lien.

When the property owners sign a petition requesting the laying of its sidewalk, it obviates the necessity of giving notices to these owners. The only purpose of notice is to give the person an opportunity to do the work. When they petition the city to do this work they would be estopped from asserting any irregularity in the proceedings. The resolution declared the work necessary and provided the specification, material, grade, etc., was passed by the board and put on the minutes of the city of Jackson.

When J. E. Bourne signed the notes in favor of the city he expressly recognized the lien of the city of Jackson in said notes. The notes were on file with the city clerk and show a charge or lien against lot two of block two of Scotland Heights and the account was carried in the name of J. E. Bourne who was the owner of the property at that time. This was notice to the world of the lien because the city records are public records, and a person is charged with notice of all matters of public record.

It is a general rule that whatever puts a party on inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty and would lead to knowledge of the facts by the exercise of ordinary intelligence and understanding (See 29 Cyc., 1114) note 6 and the case of Parker v. Vay, 43 Miss. 260, 55 Am. Rep. 484: See, also, 23 P. C. L., page 262, subject "Records, sec. 129, and cases.

It was the duty of the purchaser to examine the city records to see whether or not there was a lien and if they did examine the same they found enough to put them on notice, so that they are in no sense innocent purchasers for value without notice.

If the legislature saw fit to allow this lien upon its proceedings, then the court could not object if this statute is complied with. A mechanical or materialman's lien is in the same nature as this lien and by merely doing the work or furnishing the material, the lien is superior to practically all liens except taxes. Section 3413 is more liberal to the land owners than is section 3058 and the other liens provided in the chapters on liens.

The statute only says that after serving citation if the owner fails to do the work required or to appear at the time mentioned and show why such work shall not be done, the board of aldermen, by orders spread on the minutes, may direct the street commissioners to construct or prepare sidewalk or make the proposed improvement keeping exact account of the cost of such repairing or construction and the amount therefor shall be a lien on the property adjoining said sidewalk paramount to all other liens, state and county taxes excepted.

If J. E. Bourne is estopped from setting up any invalidity to the proceeding, then those who purchase from him are estopped as a natural consequence. Those who purchase from J. E. Bourne would be in the same position as he was for the reason that the title of the property was in the name of J. E. Bourne and any person who purchased from him would be charged with the notice of the lien held by the city of Jackson, and as the record of the city of Jackson is a public record that you could avail yourself of, the right to inspect these documents and thereby protect yourself. This petition was held by the city clerk of the city of Jackson and the notes were in his possession. The account was against J. E. Bourne and lot two of block two of Scotland Heights. The statute does not require the filing of any of these instruments for the city to have a lien upon the property.

28 Cyc., page 359 states: "Filing in the case where an ordinance was required to be filed before taking effect, it was ruled that depositing it with the proper officer was sufficient and he was not forced to mark it filed." If these documents were in the possession and custody of the clerk of the city of Jackson, and if this ordinance declaring the work necessary, and provides the grade, and the material, etc., was in the ordinance book of the city of Jackson which are public documents, they are notices to the world what they contain.

On the back of one of the notes was written: "Extended sixty days will be paid by Dave Ruffin." Order of Mayor, S. J. Taylor, 2/10/13. Dave Ruffin was the husband of Mrs. D. W. Ruffin and while the agreed statement of facts recognized that he did not have title of the property and that it could not be shown that he was her agent, yet at the same time it shows that they knew of this lien existing; as it is the straws which show the direction in which the wind is blowing.

The points involved in this case are briefly stated as follows: First, the city of Jackson had a valid existing lien against lot two of block two of Scotland Heights subdivision while the title of the property remained in the name of J. E. Bourne, for the reason that he was the owner of the property and signed a petition requesting the laying of this sidewalk. 'That under section 3413 the city of Jackson declares the work necessary, fixes the grade, describes the material, etc., and actually laid the walk. Bourne signed notes to the city thereby ratifying the cost and admitting that there was a lien upon the property. The city did all it was required to do under section 3413.

Second, the subsequent owners were charged with notice of this lien for the reason, that the minutes of the city of Jackson showed this work to have been done and the petition and notes on file, together with the amount carried against lot two of block two of Scotland Heights and J. E. Bourne, the legal holder of the title, was sufficient to give the purchaser notice of this lien.

Third, if the city once acquired this lien, it could not lose the same unless through its own action it misled innocent purchasers, and in this case there can be no claim that the city misled anyone, for the reason they did everything required by law that could be done. There was a time when attorneys passing upon a title to real property in the city of Jackson did not consult the records of the city of Jackson for the liens there; however, they are as much liens as if they were enrolled either in the office of the chancery or circuit clerk.

Fourth, Judge Potter stated that he thought there should be a special assessment and that in the absence of a special assessment the lien would not attach as to a third party; stating that while section 3413 did not provide for a special assessment, that section 3414 did. Section 3414 refers to section 3411, and section 3412; a reference to the Code of 1892 will show this to be a fact. Section 3413 relating only to sidewalks appears for the first time, in the Code of 1906. Section 3413 was amended by the Laws of 1910, page 204, and by chapter 250 of the Laws of 1912, which provided for the first time that an assessment must be made to establish a lien. When therefore the city of Jackson did everything required of it under section 3413 and when the subsequent property owners purchased this land with constructive notice of the lien held by the city of Jackson, they are bound thereby as effectually as though they had written notice served upon them.

As the facts are already before the court and agreed upon by both parties that they are the facts, we think the court should reverse the finding of the lower court and enter a judgment here for the city of Jackson.

Watkins & Watkins and P. H. Eager, for appellee.

The only question of any consequence involved in this case is whether or not a municipality can enforce a lien for sidewalk improvement against abutting property within its corporate limits in the absence of assessment, assessing each...