Fogle v. King, (No. 9967)
| Decision Date | 14 December 1948 |
| Docket Number | (No. 9967) |
| Court | West Virginia Supreme Court |
| Parties | G. T. Fogle & Company v. George W. King, et al. |
G. T. Fogle & Company
v.
George W. King, et al.
Supreme Court of Appeals of West Virginia.
Submitted September 28, 1948.
Decided December 14, 1948.
1. Liens
Street paving assessments, duly recorded, are liens against properties abutting on the street proposed to be improved, partake of the nature of liens created by mortgage, and as such may be enforced within the twenty-year period provided by Code, 55-2-5, when no time limit is otherwise provided.
2. Assessment Certificates
A street assessment certificate, containing a provision conforming to the requirement of Section 85 of the charter of the City of Dunbar, as amended and reenacted by Acts of the Legislature of West Virginia, 1925 (Municipal Charters), Chapter 29, "that in the event of default in the payment of any one of said certificates, when due, and said default con-
[132 W.Va. 225]
tinuing for a period of sixty days, then all unpaid certificates shall become due and payable" and the holder thereof "may proceed to collect all of such unpaid certificates" is merely permissive and for the benefit of the holder of the certificates and does not have the effect of expediting the operation of the applicable statute of limitations.
3. Statute of Limitations
Where street paving certificates are issued under Section 85 of the charter of the City of Dunbar, as amended and reenacted by the Acts of the Legislature of West Virginia, 1925 (Municipal Charters), Chapter 29, which charter provides that each street paving assessment issued under the provisions thereof shall contain an acceleration clause "to the effect that in the event of default in the payment of any one of said certificates, when due, and said default continuing for a period of sixty days, then all unpaid certificates shall become dus and payable", the holder of a certificate, containing such acceleration clause, who has not invoked the provisions thereof, in order to protect his right to proceed against the property owner on the basis of a personal debt, provided by the charter, as distinguished from the enforcement of the assessment lien, also provided for by the charter, must, under Code, 55-2-6, institute action for collection for each installment within five years from the time the right of action accrued on such installment.
4. Municipal Charters
A provision in a municipal charter that the amount specified in each assessment certificate, issued under the certificate plan of financing street paving, "shall be the personal debt of the property owner and a lien * * * in the hands of the holder thereof upon the lot or part of a lot fronting on" the street which has been improved, is constitutional.
5. Assessments
The theory of paving assessments as liens on properties abutting on the street to be improved, as well as the personal liability of the abutting property owners, as provided by the statute under which the assessments were levied, is based upon the proposition that the improvements will inure to the benefit of the abutting properties.
6. Assessments
A special assessment against abutting properties for street improvement purposes which is in substantial excess of the
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benefits conferred by the improvement is to the extent of such excess unconstitutional and void..
7. Assessments
"An assessment by a city upon lot owners for cost of paving a street is not contrary to Amendment 14 of the National Constitution, or Section 10 of Article 3 of the State Constitution, either because the assessment is by the number of front feet of lots abutting on the street, or because there was no notice of such assessment to the lot owners." Syllabus, Heavner v. City of Elkins, 69 W.Va. 255.
8. Protest
Where an abutting property owner fails to protest against a voidable street assessment, in accordance with the statute authorizing such protest, or, if protest is made and overruled, such owner fails to avail himself of injunctive relief, he will not be heard to complain except as to that part of the assessment which is unconstitutional because of excessiveness.
9. Values
In a suit to enforce a street assessment based upon special benefits to the abutting property, the special benefits inuring to the property are the difference between the value of the abutting property immediately before and immediately after the improvements were made.
1C. Suits
Where a municipal charter, authorizing the laying of street assessments and the issuance of assessment certificates representing the assessment lien, provides that such assessment shall be the personal debt of the owner of property abutting on the street proposed to be improved under the assessment, who, prior to the actual construction of the paving and the expenditure of money thereafter, has failed to avail himself of the remedies for contesting the validity of the assessment provided by the city charter, will not be permitted, in a suit by the holder of any of such certificates, brought for the purpose of enforcing payment thereof by the sale of the property and the assertion of personal liability for any deficiency, to attack the validity of the assessment as such on the ground that the property has not been benefitted thereby, nor will he be permitted in such suit to deny personal liability for the difference between the value of the special benefits inuring to the proper-
[132 W.Va. 227]
ty by reason of the improvements and the amount derived by the certificate holder through the decretal sale of the property.
11. Appeal
This Court, on writ of error or appeal, will not in the first instance consider nonjurisdictional questions not fairly arising upon the record.
Appeal from Circuit Court, Kanawha County.
Suit in equity by G. T. Fogle & Company against George W. King and others to enforce a paving assessment against certain lot and to recover against named defendant any difference in the amount due in the assessment and proceeds to be derived from sale of the lot. From adverse decree, plaintiff appeals.
Reversed and remanded with directions. Fox and Kenna, Judges, dissenting. Henry S. Cato, for appellant. Kay, Casto & Amos, for appellees.
Riley, President:
G. T. Fogle & Company, the holder of a paving certificate, brought this suit in equity in the Court of Common Pleas of Kanawha County to enforce a paving assessment against Lot No. 98 of Block 17 of the Dunbar Extension to the City of Dunbar and to recover against the defendant, George W. King, any difference between the amount due under the assessment and the proceeds to be derived from the sale of the lot. The defendant filed an answer and plea of the statute of limitations. Demurrers having been overruled, plaintiff replied generally to the answer and special plea. The court of common pleas, after overruling the demurrers to the several pleadings found that (1) King was not personally liable to the plaintiff beyond the exhaustion of the value of the lot; (2) that the personal liability of King was barred by the
[132 W.Va. 228]
statute of limitations; and (3) that the only proof the court would permit to be taken before entering the decree of sale would be as to the amounts and'priorities of the liens against the lot. The circuit court having refused an appeal and supersedeas, the correctness of the decree of the court of common pleas is now before this Court on appeal.
Fogle & Company, under a contract with the City of Dunbar, dated May 2, 1927, paved West Virginia Avenue on the "certificate plan," that being one of two alternate methods to finance paving projects within the city, provided by the charter of the City of Dunbar, Acts of the Legislature of West Virginia, 1921, (Municipal Charters) Chapter 7, as amended by Acts of the Legislature, 1925, (Municipal Charters) Chapter 29, the other method being by "bond issue". In the latter the paving contractor has direct recourse to the city for payment. Under the "certificate plan", Section 85 (erroneously numbered 88 in the 1925 amendment) of the charter, the city, in return for material, labor and equipment furnished, issues to the contractor certificates representing the assessment covering the cost of the improvements which are liens against the abutting properties. While these certificates are delivered in the first instance to the contractor, they may be assigned at any time. To facilitate the collection of the certificates, as well as the assignment thereof, the charter provides (1) that the holder has the right in a suit in equity to enforce the assessment liens against the abutting properties; and (2) that each certificate contain an acceleration clause to the effect that in the event of default in the payment of any one of the certificates when due, the default continuing for a period of sixty days, then all unpaid certificates shall become due and payable, and the holder of said certificates "may proceed" to collect all of such unpaid certificates "in the manner hereinbefore provided." Section 85 of the charter, as it read at the time the instant assessment was made, provided that the amount specified in each certifi-
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cate should be "the personal debt of the property owner, and a lien * * *." against his property.
On December 19, 1927, the city laid assessments against the abutting properties, including an assessment of $1,035.79 against Lot No. 98, and its owner, George W. King, for which it issued to plaintiff contracting company paving assessment certificate No. 2631, and caused the assessment to be recorded in the office of the Clerk of the County Court of Kanawha County. The assessment represented by this certificate was, as charged in plaintiff's bill of complaint, payable in ten yearly installments, "the first annual installment of said assessment became due and payable to plaintiff on the 1st day of May, 1928, but was not paid by the said defendant, and that, though jften demanded, no part of said assessment has ever been paid to the plaintiff by the said defendant." The present...
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