City of Southwest Fargo Urban Renewal Agency v. Lenthe
| Decision Date | 02 March 1967 |
| Docket Number | Nos. 8370--8372,s. 8370--8372 |
| Citation | 149 N.W.2d 373 |
| Parties | CITY OF SOUTHWEST FARGO URBAN RENEWAL AGENCY, a public body, corporate and politic, Plaintiff and Respondent, v. Edmund L. LENTHE et al., Defendants, Marvin A. Emery et al., Defendants andAppellants. CITY OF SOUTHWEST FARGO URBAN RENEWAL AGENCY, a public body, corporate andpolitic, Plaintiff and Respondent, v. R. V. POWERS et al., Defendants, R. V. Powers, Defendant and Appellant. CITY OF SOUTHWEST FARGO URBAN RENEWAL AGENCY, a public body, corporate andpolitic, Plaintiff and Respondent, v. Jacob M. SCHMIERER et al., Defendants, Wallace A. Beaton et al., Defendantsand Appellants. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. As between a vendor and vendee, all special assessments upon real property for local improvements, from and after the first day of December after the assessments have been certified and returned to the county auditor, shall be and become a lien upon the real property upon which the same are assessed in the amount certified and returned, and no more. § 40--24--03, N.D.C.C.
2. Section 40--24--03, N.D.C.C., applies to a condemnation proceeding, so that uncertified and unreturned special assessments are not deductible from the condemnation award.
3. Urban renewal property is not exempt from the payment of special assessments.
Nilles, Oehlert & Nilles, Fargo, for defendants and appellants.
Ralph B. Maxwell, West Fargo, for plaintiff and respondent.
E. T. Conmy, Sr., Fargo, for defendant and respondent City of Southwest Fargo.
Three separate condemnation proceedings initiated by the City of Southwest Fargo Urban Renewal Agency were combined for trial. Following the verdicts of the jury separate judgments were entered in each proceeding. No appeals were taken from the judgments. Each judgment provided that the Urban Renewal Agency acquired title 'in fee simple absolute as set forth in the complaint of the plaintiff, free and clear of all liens and encumbrances, including liens for taxes and special assessments.'
After the entry of the judgments the Urban Renewal Agency deposited with the Clerk of the District Court of Cass County the amounts of the verdicts. Thereafter, on February 26, 1963, the appellant landowners moved that the district court issue its order distributing the moneys on deposit with the clerk of the district court to those entitled to them. Pursuant to a stipulation entered into by the Urban Renewal Agency, the City of Southwest Fargo, and the appellant landowners, the district court on March 12, 1963, ordered the clerk to disperse all of the funds held by the clerk except those amounts which represented the amount of the unpaid special assessments claimed by the City of Southwest Fargo.
By a number of orders dated June 5, 1963, the district court ordered that the funds held by the clerk of the district court in sums of the unpaid special assessments on the various parcels of land condemned be dispersed by the clerk to the City of Southwest Fargo. It is from these orders that the landowners Wallace A. Beaton, Violet F. Beaton, Alfred R. Tollefson, Elaine B. Tollefson, Marvin A. Emery, Berthold E. Sackman, Anita Sackman, Kenneth W. Crooks, Dorothy E. Crooks, and R. V. Powers have appealed.
The issue before us is whether the trial court was correct in deducting from the compensation awarded the landowners the amount of the uncertified and unreturned special assessments levied against the property.
Three statutes are pertinent in a consideration of this question:
40--24--01. Lien of special assessment--Attaches on approval of assessment list--Subject only to general tax lien.--A special assessment, together with all interest and penalties which accrue thereon, shall be and remain a lien upon the property upon which the assessment is levied from the time the assessment list is approved by the governing body until the assessment is paid fully. Such lien shall have precedence over all other liens except general tax liens and shall not be divested by any judicial sale. * * *
40--24--02. Special assessments when due and payable--Interest.--All special assessments levied under the provisions of this title shall become due and payable ten days after they have been approved by the governing body and thereafter shall bear interest at a rate of not exceeding seven per cent per annum on the total amount thereof remaining from time to time unpaid.
40--24--03. Lien between vendor and vendee of special assessments.--As between a vendor and vendee, all special assessments upon real property for local improvements, from and after the first day of December after the assessments have been certified and returned to the county auditor, shall be and become a lien upon the real property upon which the same are assessed in the amount certified and returned, and no more.
The amendments made in 1965 to §§ 40--24--02 and 40--24--03 have no bearing on this appeal.
It is the contention of the landowners that they are the vendors and that the Urban Renewal Agency is the vendee and that, accordingly, § 40--24--03 applies, so that they as vendors are not liable for the payment of the uncertified and unreturned special assessments.
The trial court pointed out in his memorandum decision that it is undisputed by the parties that the unpaid special improvement assessments arose out of certain improvements made in the city, which were completed between October 1, 1959, and October 1, 1960, and that the assessment list was approved and confirmed by the governing body of the city on December 7, 1959, as shown by the affidavit of J. M. Dahle, Auditor of the City of Southwest Fargo.
Applying §§ 40--24--01 and 40--24--02, the trial court concluded that the special assessments became a lien upon the property on December 7, 1959, and became due and payable ten days thereafter, and that since the condemnation of the various parcels did not take place until 1963, the unpaid special assessments were liens upon the various parcels of land and payable out of the respective condemnation awards.
The trial court, referring to 45 A.L.R.2d 529, acknowledged that there was authority to support the contentions of the landowners, but in rejecting that authority described the authority which was to the contrary as being respectable.
We have carefully reviewed the authority referred to in the trial court's memorandum decision, which is relied on by both the condemning agency and the City of Southwest Fargo, as well as the authority referred to by the landowners in their briefs and have come to the conclusion that a condemnation proceeding is a compulsory sale wherein the landowner is the involuntary vendor and the condemning agency is the vendee, and thus that § 40--24--03 applies to a condemnation proceeding. The application of that section to this case requires a reversal of the trial court's orders.
This court has in effect construed § 40--24--03 in Halvorson v. Boehm, 76 N.W.2d 178 (N.D.1956), and an earlier statute which had similar provisions in Murray Bros. v. Buttles, 32 N.D. 565, 156 N.W. 207. Neither of those cases involved condemnation proceedings; we believe, however, that they are helpful in determining the basic issue in this case.
In Murray Bros. this court affirmed the trial court's holding that unpaid and unmatured installments of county drain assessments did 'not constitute a lien or incumbrance upon the property such as were covered by the general warranties found in the deed against incumbrances upon the land.'
In construing § 40--2403, N.D.R.C. of 1943, this court discussed its predecessor, Chapter 35 of the 1903 Session Laws, as follows:
In all of the laws in force in this state prior to the enactment of Chapter 35, Laws of N.D.1903, the lien of special assessments was generally effective as to all persons from the time of the approval of the assessment list by the governing body of the assessing municipality. No exception was made with respect to the effectiveness of the lien as between vendor and vendee. In the opinion of the Legislative Assembly in 1903 this situation constituted an emergency and to meet this emergency they adopted Chapter 35, supra, which provided that special assessments should become a lien as between vendor and vendee on December 1st, following their certification to the county auditor. The language of the statute clearly implies that as between vendor and vendee, special assessments are not lien until December 1st, following such certification. Furthermore, the circumstances in which Chapter 35, supra, was adopted and the wording of the emergency clause clearly demonstrate that the intent of the legislature was to except those who stood in the relationship of vendor and vendee from the effect of the provision that special assessments should be a paramount lien from the time of their approval by the governing board of a municipality.
Halvorson v. Boehm, 76 N.W.2d 178, 180 (N.D.1956).
The only question, therefore, that these...
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