Frankel v. Blank

• Decision Date: 03 May 1927
• Docket Number: 37577
• Citation: Frankel v. Blank, 205 Iowa 1, 213 N.W. 597 (Iowa 1927)
• Parties: HENRY FRANKEL, Appellant, v. ABRAHAM H. BLANK, Appellee
• Court: Iowa Supreme Court

213 N.W. 597

205 Iowa 1

HENRY FRANKEL, Appellant, v. ABRAHAM H. BLANK, Appellee

No. 37577

Supreme Court of Iowa, Des Moines

May 3, 1927

REHEARING DENIED JANUARY 13, 1928.

Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.

Action at law by the vendee of a leasehold for breach of a covenant against liens and incumbrances. There was a trial to the court, resulting in a judgment for the defendant. The plaintiff appeals.

Affirmed.

Stipp Perry, Bannister & Starzinger, for appellant.

Sargent Gamble & Read, for appellee.

VERMILION, J. EVANS, C. J., and STEVENS, FAVILLE, and KINDIG, JJ., concur.

OPINION

VERMILION, J.

On May 3, 1923, the parties entered into a written contract whereby the defendant and appellee, Blank, sold to the appellant, Frankel, a 99-year lease held by him upon certain real estate in the city of Des Moines. In the contract it was expressly agreed that the premises should be "free and clear from any and all liens and incumbrances up to June 1, 1923, except only" a certain mortgage. On May 24, 1923, in pursuance of such contract, the appellee executed and delivered to the appellant what is designated as "an instrument of assignment and conveyance," whereby he assigned and transferred the lease to appellant, and expressly covenanted and agreed that "said premises are free and clear from any and all liens and incumbrances whatever," except the mortgage. The instrument further provided that the appellant, by accepting the same, assumed and agreed to perform and discharge all duties and obligations assumed by the appellee in the lease. The lease provided that the appellee, the lessee therein, should, in addition to the monthly rentals provided for, "pay and discharge before they became delinquent all regular taxes" and "all special taxes, public rates assessments, and charges levied upon or against said premises."

The property in question was within the limits of a district established by the city council of the city of Des Moines as subject to assessment for a designated street improvement, the opening, widening, and extension of Keosauqua Way. A schedule of proposed assessments for the cost of the improvement was prepared and filed, which, after due notice and opportunity for the filing of objection, was, on December 28, 1922, by resolution of the city council approved. The amount of the assessment against the property in question was $ 1,859.59. On January 27, 1923, the appellee signed a waiver of "any objection to error, inequality, irregularity or illegality as to said assessment," in consideration of having the right to pay the assessment in 20 equal annual installments, as provided by a resolution passed by the city council, and paid to the city treasurer the first of such installments, with the accrued interest on the unpaid portion of the assessment.

It is conceded that no part of the cost of the improvement for which the assessment was levied was done under contract, and that no such certificate as was provided for by Section 816, Code Supplement of 1913 (Section 6007, Code of 1924), was filed with the county auditor prior to June 1, 1923.

The action is to recover the amount of the unpaid special assessment and interest, upon the appellee's covenant that the premises were free and clear of liens and incumbrances. The case turns upon whether the amount of the special assessment was a lien or incumbrance on the premises on June 1, 1923.

I. Was the special assessment a lien on the premises on June 1, 1923?

Section 816 provided, in substance, that, after a contract had been made by a city for a street improvement, the city clerk should file with the county auditor a copy of the notice of the resolution provided for, and a copy of the proof of publication thereof, with a certificate that an ordinance or resolution directing the making of the improvement had been adopted, and that thereupon special taxes for the cost of the improvement should become a lien on the property from the date of filing such papers. It is the contention of appellant that this statute was not, in any event, applicable to the assessment in question, for the reason that no contract was made by the city for the improvement, and that the tax became a lien, under the provisions of Section 1400, Code of 1897, when it was definitely known what the charge would be. In this connection, reliance is put upon what is said in Plymouth County v. Moore, 114 Iowa 700, 87 N.W. 662; Larson v. Hamilton County, 123 Iowa 485, 99 N.W. 133, and Gates v. Wirth, 181 Iowa 19, 163 N.W. 215. The first two cases involved the lien of taxes upon stocks of goods. The lien was created by statute; the only question was when it attached. In the last, the question arose between a life tenant and a remainderman as to who should pay taxes on the land where the life estate terminated after assessment and before levy. These cases involved general taxes, and are not in point.

It is well settled that a lien on real estate for taxes has no existence unless there be some statute creating it, and that such a statute is to be strictly construed. Jaffray & Co. v. Anderson, 66 Iowa 718, 24 N.W. 527; Eagle Mfg. Co. v. City of Davenport, 101 Iowa 493, 70 N.W. 707; Cemansky v. Fitch, 121 Iowa 186, 96 N.W. 754; Halvorson v. Mullin, 179 Iowa 293, 156 N.W. 289. In Halvorson v. Mullin, supra, we said that there was no statute other than Section 816, directing how special assessments for street improvements could be made a lien on realty, and that Section 1400 had reference to general taxes only. The latter statement is characterized by counsel for appellant as dictum, but this is incorrect. In that case, as here, the question was when a special assessment for street improvement became a lien on real property, as between vendor and vendee. The question decided on the original submission was whether there was a lien under Section 816, and that depended on when title passed under a deed in blank. It appears to have been conceded that if, upon inserting the name of a grantee, the conveyance related back to the date of delivery of the deed, there was no breach of the covenant against liens, for the reason that at that date there was no lien, under Section 816. We so held. Upon rehearing, it was urged that there was a lien on the date of delivery of the deed, because the tax then appeared on the tax list. In response to this contention, we said, in a supplemental opinion:

"Conceding that the sale of realty for taxes in December can only be had for taxes on the tax list January 1st preceding, it does not follow that being on said list renders them a lien on the land against which levied."

We also said:

"The validity of the subsequent tax sale in December following does not necessarily depend on the existence of a prior lien. * * * Something must be done in order to render special assessments or certificates thereof a lien, as between vendor and purchaser, and what that is, is specified in Section 816 * * *."

It was in this connection that we said that Section 1400 had reference to general taxes only. There is no claim that the special assessment in question here appeared on the tax list on June 1, 1923.

Since admittedly the steps pointed out in Section 816 were not taken, at least prior to June 1, 1923, it is unnecessary to consider whether, in view of the fact that there was no contract for the improvement, that section was, in any event applicable. Nor are we, by contemplating the possibility that the legislature has made no provision for such a tax to become a lien, in the...