City of Shreveport v. Urban Land Co., Inc.

• Decision Date: 05 February 1935
• Docket Number: 4990
• Citation: 159 So. 158
• Court: Court of Appeal of Louisiana — District of US
• Parties: CITY OF SHREVEPORT v. URBAN LAND CO., Inc

159 So. 158

CITY OF SHREVEPORT v. URBAN LAND CO., Inc

No. 4990

Court of Appeal of Louisiana, Second Circuit.

February 5, 1935

M. T Monsour, of Shreveport, for appellant.

Foster Hall, Barret & Smith, of Shreveport, for appellee.

OPINION

TALIAFERRO Judge.

This suit involves, primarily, the legality of a paving assessment and present status of the lien flowing therefrom, against a part of lot 11 of block 17 on Caddo street in the city of Shreveport, formerly owned by Mrs. Anna D. McClellan. The ordinance of the city of Shreveport accepting paving on Caddo street including that involved herein, fixing the amount due by the abutting property owners, and making assessments accordingly, as prescribed by Act No. 187 of 1920, amended by Act No. 115 of 1922, was finally adopted on September 11 1923. It was duly and timely registered in the mortgage records of Caddo parish on September 21st, following, in order to evidence and preserve the lien securing payment of the paving costs as therein fixed.

At the time the paving was done by the city, the property above described was owned by Mrs. Anna Davenport Lucas, sole heir of Mrs. McClellan. The ordinance accepting the paving refers to the property as being owned by Mrs. McClellan. The amount of the paving assessment was originally $ 257.87. It has been reduced to $ 125.87, the amount for which this suit was instituted. It is provided in said ordinance that all amounts due by the abutting property owners, as therein fixed, shall be due and payable immediately upon passage of the ordinance, and if not paid within ten days thereafter, the city, or its transferees, shall have the right to enforce payment thereof, with interest and attorney's fees. It is also provided that the property owners shall have the privilege of paying 20 per centum of the amount due by them, respectively, within ten days, and of paying the balance in four equal annual installments by executing their promissory notes therefor. However, in the present case, the property owner did not avail herself of this privilege. No notes or lien certificates were signed by her.

On July 15, 1927, Mrs. Susan D. Lucas executed her three notes for $ 250 each to her own order and by her indorsed, and mortgaged said property to secure payment thereof. The mortgage was promptly recorded and Marion K. Smith purchased the notes. Before doing so, he procured from the clerk and recorder of Caddo parish a mortgage certificate which did not show registry of the paving lien to the city of Shreveport, herein sued on. Mrs. Lucas failed to pay said mortgage notes and Mr. Smith foreclosed the mortgage and bought the property in at sheriff's sale. The mortgage certificate delivered to the sheriff by the clerk and recorder at the time of the sheriff's sale, also, did not disclose that said paving lien was of record. Smith sold the property to the Urban Land Company, Incorporated, defendant herein, by warranty deed.

Plaintiff seeks to foreclose the lien and privilege granted by law to secure the payment of the cost of said paving, and cited the Urban Land Company because it is the record owner of the property affected by the lien. Judgment in rem only is prayed for. This suit was filed May 16, 1932.

Defendant challenges the validity of the purported paving lien and assessment as against its property on the ground that Anna D. McClellan was not the owner of said property at the date the assessment was made and lien recorded, and avers that she had not been the owner thereof since 1916. It called the clerk of court of Caddo parish and Marion K. Smith in warranty. Smith also called the clerk of court in warranty because of the incorrect mortgage certificate issued by him, above mentioned. He also assails the validity of the paving lien as to said property on the same ground that defendant did. He avers he was not aware of the existence of the paving lien and assessment and purchased the mortgage notes from Mrs. Lucas and the property at sheriff's sale on the faith of the mortgage certificate issued by said clerk and recorder, which failed to disclose registry of said paving lien. He prays for judgment on his call in warranty of the same character and amount as may be given against him to defendant. Hon. W. M. Levy, clerk of court, having died before answering the calls in warranty served upon him, his surviving widow and sole heir, who had accepted his succession unconditionally, were substituted in his stead. They adopt the defenses urged by Marion K. Smith, except that they deny that he relied upon the faith of the mortgage certificate of July 16, 1927, as an inducement to purchase the mortgage notes of Mrs. Lucas. In June, 1934, defendant and the warrantors filed pleas of prescription of three and ten years, in bar of plaintiff's right to foreclose its lien and privilege, averring "that the claim, lien and privilege for paving herein sued upon has perempted by the lapse of three and ten years since its recordation." Act No. 46 of 1918 is relied on. The plea of prescription of ten years was sustained and the suit dismissed. Plaintiff appealed.

More than ten years have elapsed since the ordinance of the city of Shreveport, accepting the paving in front of the property involved and levying assessments thereunder, was recorded in the mortgage records of Caddo parish. It does not appear, nor is it contended, that the ordinance has been reinscribed in said records. Therefore, on the face of the records, defendant being a third person to the paving proceedings, a nominal defendant only, the plea that the registry of the evidence of the paving lien has perempted by the lapse of ten years appears sound. If this plea is sustained, the attack on the legality of the lien need not be considered.

Act No. 46 of 1918 reads as follows:

"To prescribe claims, liens and privileges for paving streets, alleys and sidewalks.

"Section 1. Be it enacted by the General Assembly of the State of Louisiana, that claims, liens and privileges for paving streets, alleys and sidewalks, shall prescribe by ten years from the date of the certificates or other evidences of such claims, liens and privileges; provided, that in all cases where the cost of the paving shall have been advanced by any Parish, City or Town,...