Englehart's Estate v. Larimer, 26809.

• Docket Nº: No. 26809.
• Citation: 5 N.E.2d 304, 211 Ind. 218
• Case Date: December 23, 1936
• Court: Supreme Court of Indiana

211 Ind. 218
5 N.E.2d 304

ENGLEHART'S ESTATE et al.
v.
LARIMER et al.

No. 26809.

Supreme Court of Indiana.

Dec. 23, 1936.

Proceedings by Milton B. Larimer and others for the allowance of their claims against the estate of Timothy W. Englehart, deceased. The claims were consolidated for trial, and, from a judgment for claimants, the estate and executors appeal.

Affirmed.

See, also, 1 N.E.(2d) 677.

[5 N.E.2d 304]

Appeal from Superior Court, Lake County; Claude V. Ridgely, judge.
Sheehan & Lyddick, of Gary, for appellants.

McMahan, Strom & Hulbert, of Gary, for appellees.

TREMAIN, Chief Justice.

The common council of the city of Hobart, by proper proceedings, ordered the improvement of certain streets in that city pursuant to the Barrett Law, and issued bonds to pay for the improvement against the adutting property of owners who signed waivers as provided in said law. Sections 48-2711, 48-2712, 48-2713, 48-2716, and 48-2718, Burns' Ann.St.1933, sections 11662, 11663, 12529, 11666, and 12528, Baldwin's Ind.St.1934. Among those who signed waivers was the decedent, Timothy W. Englehart, whose estate is one of the appellants herein.

The total amount of the bond issue, based upon all waivers signed, was $112,974.70. The bonds issued were for the aggregate amount of such assessments and not against the individual assessment of each property owner who signed a waiver. Prior to the enactment of section 48-2713, Burns' Ann.St.1933, section 12529, Baldwin's Ind.St.1934, being section 1, c. 34, Acts 1925, p. 115, and pursuant to section 48-2721, Burns' Ann.St.1933, section 11669, Baldwin's Ind.St.1934,

[5 N.E.2d 305]

which was section 2, c. 257, Acts 1907, the contractor was given the right to demand and have issued to him, at his option, bonds against each person's property who had elected to pay in installments. But since the passage of the 1925 act, which supersedes the 1907 act, the contractor cannot so elect. The later act provides:

‘All bonds hereafter issued in anticipation of assessments made on account of public improvements, in cases where the property owners affected shall have elected to pay the cost of such improvements in installments as now provided by law, shall be issued in anticipation of the aggregate amount of such assessments for each particular improvement and not against the individual assessment of each property owner so electing to pay in installments. Such bonds shall be issued in denominations not exceeding five hundred dollars ($500) each and shall be issued in ten equal series, one series payable each year beginning as herein provided.’

Of the total amount of said bonds issued, the assessment roll shows that $11,250.09 was levied against abutting real estate owned by Timothy W. Englehart, who filed a waiver and who has since deceased. It appears that the total bond issue was sold to different persons. The appellee Milton B. Larimer was the owner of such bonds in the principal sum of $2,000; appellee Central Building & Loan Association was the owner in the sum of $52,547.29; and the appellee James Hansen receiver of the Central Trust & Savings Bank, was the owner of such bonds in the sum of $22,500. Payments had been made upon said bonds prior to the death of said Englehart. At the time of his death there was still due and owing upon the assessment against his lots the sum of $9,770.14. An executor was qualified upon his estate and each of the appellees filed separate claims against the estate, demanding judgment in the respective amounts of the bonds held by each. The claims were disallowed and were transferred to the trial docket. Issues were closed and the causes submitted to the court for trial, resulting in judgments in favor of the appellees. Separate appeals were taken to the Appellate Court and all the judgments were reversed. Feder, Rec'r, v. Gary State Bank (1933) 98 Ind.App. 513, 186 N.E. 379;Central Building & Loan Association v. Gary State Bank (Ind.App.) 186 N.E. 382;Larimer v. Gary State Bank (Ind.App.) 186 N.E. 384.

Section 48-2717, Burns' Ann.St.1933, section 11667, Baldwin's Ind.St.1934, gives the property owner the privilege to ‘enter into an agreement in writing that in consideration of such privilege [waiver], he will make no objection to any illegality or irregularity with regard to the assessment against his property and will pay the same as required by law with specified interest.’ The agreement executed by the decedent, among other things, contains the foregoing provision quoted from the statute. There are other provisions in the Barrett Law statute specifically providing for liens against the property and for foreclosure of such liens. Section 48-2711, Burns' Ann.St.1933, section 11662, Baldwin's Ind.St.1934, after making provisions for the foreclosure of the lien created by statute, provides: ‘Where a property-owner, or property-owners, has or have exercised the...