Des Moines Brick Mfg. Co. v. Smith

• Decision Date: 11 May 1899
• Citation: 79 N.W. 77,108 Iowa 307
• Parties: DES MOINES BRICK MANUFACTURING COMPANY, Appellant, v. WILLIAM T. SMITH et al., WILHELMINA LEVEKE, Intervener
• Court: Iowa Supreme Court

79 N.W. 77

108 Iowa 307

DES MOINES BRICK MANUFACTURING COMPANY, Appellant, v. WILLIAM T. SMITH et al., WILHELMINA LEVEKE, Intervener

Supreme Court of Iowa, Des Moines

May 11, 1899

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

ACTION in equity to enforce and foreclose a lien upon real estate of defendant Smith. The lien is claimed under certain certificates issued for paving a street upon which the property abuts. The intervener claims, and by cross bill seeks to foreclose, a lien in her favor, based upon certificates issued for curbing the same street. The contest is as to the priority of these liens. The district court gave judgment in intervener's favor. Plaintiff appeals.

Affirmed.

Guernsey & Granger for appellant.

A. P Chamberlain for intervener.

Connor & Weaver for other appellees.

OPINION

WATERMAN, J.

The only issue presented is between plaintiff and intervener, and it relates to the priority of their respective liens. Which is to have precedence of the other is the only question in the case. The certificates held by intervener were issued in payment for curbing East Grand avenue in the city of Des Moines. The contract for this work was let about August 19, 1891, and the work was completed during that year. The certificates therefor were issued March 16, 1893. The certificates held by plaintiff were given, as already said in payment for paving the same street. The contract for this work was let about April 15, 1892; the labor was done during the year 1893, and the certificates were issued May 19th of that year. It is apparent that the lien of the intervener was first in point of time. The contention of plaintiff is that its later lien supersedes the other. The rule, in the absence of statutory provision to the contrary, is that liens take precedence in the order of time; the first in point of time being superior. The only exception to this that we now recall is a bottomry bond, and it is expressly recognized by text writers as differing in this respect from all other common law liens. 3 Kent Commentaries, 437. This order of priority will not be disturbed or altered, unless expressly provided by statute. Smith v. Skow, 97 Iowa 640, 66 N.W. 893; Bibbins v. Clark, 90 Iowa 230, 57 N.W. 884.

We come, then, to an investigation of the statutory provisions with relation to liens of the character of those involved. It is conceded that this case is governed by chapter 168, Laws Twenty-first General Assembly. Section 13 of that act is as follows: "Said assessments with interest accruing thereon shall be a lien upon the property abutting upon the street or streets on which any such improvement is made from the commencement of the work, and shall remain a lien until fully paid, and shall have precedence over all other liens excepting the ordinary taxes, and shall not be divested by any judicial sale, provided that such lien shall be limited to the lots bounding or abutting on such street or streets, and not exceeding in depth therefrom one hundred and fifty feet." It is upon the construction of this section that the rights of the parties depend. If the section stood alone, there would be much warrant for the claim made by appellant that the last lien so given displaced all other previous liens upon the property. But, in order to properly interpret this part of the chapter, we must look to its context. This act begins with a grant of power to certain cities to levy special assessments for paving, curbing, or sewering streets. These three distinct kinds of improvement may be made and paid for by levying the cost against abutting property. As the law proceeds, it treats of these improvements as a class. Nowhere does it distinguish between them, or attempt to set off one as against the others. When section 13 is reached, the lien for such cost is provided for, not of either one of these improvements, but of the whole class, and it is said such lien "shall have precedence over all other liens, excepting ordinary taxes." Looking at it in this way, it would seem clear that the "other liens" mentioned are liens of some other class or kind. There appears to be good reason, too, for so construing this act. It would be something unusual to say that the municipality might, by its own voluntary act, displace a lien which, under the law, it had given. We are asked now to hold that after the city, through its acts, has given to one party a lien, it can without his consent and against his will, displace, and perhaps destroy, it, by creating another lien in favor of some other person. This right may be conferred by statute, but it should be done in unmistakable language before we would feel justified in so holding. Such a provision, too, would have a tendency to defeat the whole purpose of the statute. It is safe to say that contractors would hesitate to accept these certificates, if they knew the city had power at any time to destroy the lien by which their payment is secured. It may be thought, as counsel in substance asserts, that the...