Guaranty Mortgage & Securities Co., Inc. v. Millsaps

• Decision Date: 30 October 1933
• Docket Number: 32188
• Citation: 178 La. 255,151 So. 197
• Parties: GUARANTY MORTGAGE & SECURITIES CO., Inc., v. MILLSAPS
• Court: Louisiana Supreme Court

151 So. 197

178 La. 255

GUARANTY MORTGAGE & SECURITIES CO., Inc., v. MILLSAPS

No. 32188

Supreme Court of Louisiana

October 30, 1933

Rehearing Denied November 27, 1933

Appeal from Fourth Judicial District Court, Parish of Ouachita; J T. Shell, Judge.

Suit by the Guaranty Mortgage & Securities Company, Incorporated against F. F. Millsaps. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hudson, Potts & Bernstein, of Monroe, for appellant.

Hakenyos, Provosty & Staples and Hakenyos & Staples, all of Alexandria, and Theus, Grisham, Davis & Leigh, of Monroe, for appellee.

ST. PAUL, Justice. LAND, J., ODOM, J. dissents.

OPINION

ST. PAUL, Justice.

Act No. 168 of 1926 (page 268) is a general paving and street improvement statute, applicable to all incorporated parish seats and to cities and towns having a population exceeding 1,000 (the city of New Orleans excepted). It provides that the municipal authorities may pave and otherwise improve the streets and alleys of the municipality, and that after charging a certain portion of the cost of such improvements against railroads occupying such streets, whether municipally or privately owned, "the abutting property owners shall pay for the balance of the cost of paving or other improvements, as herein provided, in proportion to the respective front footage of the properties owned by them and abutting on the street or alley to be paved or otherwise improved, as herein provided." Section 4.

I.

It has been uniformly held that statutes thus worded impose no personal liability on the owners of the property abutting on the street or alley paved or otherwise improved, and strongly intimated that any attempt to impose such personal liability beyond the value of the property would be of doubtful constitutionality. Barber Asphalt Paving Co. v. Watt, 51 La.Ann. 1345, 26 So. 70; Rosetta Gravel, Pav. & Imp. Co. v. Adler, 52 La.Ann. 689, 693, 27 So. 183; Moody & Co. v. Chadwick, 52 La.Ann. 1888, 28 So. 361; Town of De Ridder v. Lewis, 139 La. 903, 908, 72 So. 447; Clade v. La Salle Realty Co., 144 La. 989, 81 So. 598; Town of Ruston v. Adams, 9 La.App. 618, 121 So. 661.

On the other hand, there is nothing which prevents the owner of such property or any other person from assuming personal liability for a local assessment thereon if he choose to do so in order to gain some advantage or for other reasons satisfactory to himself. Kelly v. Mendelsohn, 105 La. 490, 492, 29 So. 894.

II.

Section 8 of the Act No. 168 of 1926 provides that the amount assessed against the abutting properties shall be due and exigible immediately upon the passage of the ordinance or resolution of the municipal authorities accepting the work, and if same be not paid within 10 days the property assessed may be proceeded against at once for the amount of the assessment and 10 per cent. attorney's fee thereon.

But (section 9), "The governing authority of said municipality, however may provide in the ordinance accepting the work and making the assessment, that the property owners therein assessed, availing themselves of the privileges within ten days after the passage of the ordinance or resolution, may pay in cash ten per centum of the amount of their indebtedness and pay the balance thereof in nine (9) equal annual installments, and as evidence of such deferred payments, the property owners shall sign and execute nine (9) promissory notes, payable to the order of the municipality, each for ten per centum of the amount due by him, dated ten days after the passage of the ordinance accepting the work, maturing respectively on or before one (1) to nine (9) years, both inclusive, from date, or sooner, at the option of the owner, bearing six (6) per centum per annum interest from date and ten per centum attorney's fees if placed in the hands of an attorney for collection after maturity, which said notes when paraphed by the municipal Clerk or Secretary to identify them with the ordinance levying the assessment, shall carry with them in the possession of any bona fide owner the lien and privilege above provided," and (section 10), "The assessments and the notes executed by the property owners, pursuant to the provisions hereof, may be transferred by the municipality without recourse to the contractor at their face value and such contractor or any of his transferees shall have and enjoy the lien, privilege and all other rights herein provided, accruing to the said municipality."

III.

The city of West Monroe paved the street on which defendants' property abutted. On January 7, 1929, the city accepted said pavement and levied an assessment against said property. On the tenth day thereafter, to wit, on January 17, 1929, the defendant, rather than have his property proceeded against and seized and sold to satisfy said assessment and 10 per cent. attorneys' fees thereon, chose voluntarily to take advantage of the provisions of section 9, above quoted, and thereupon paid one-tenth of said assessment and executed his nine equal promissory notes for the other nine-tenths of said assessment payable seriatim from year to year, thereby escaping the city's peremptory right to the 10 per cent. attorneys' fees and obtaining a long extension of time for the payment of the assessment.

Thereupon the city, under section 10, above quoted, indorsed said notes in blank without recourse; and plaintiff is now the holder of said notes, having presumably acquired them from the contractor.

IV.

As we said above, there is nothing which prevents the owner of property or any other person from assuming personal liability for a local assessment thereon if he choose to do so in order to gain some advantage or for other reasons satisfactory to himself. And it was manifestly advantageous, or at least satisfactory, to this defendant to assume personal liability for an obligation and thereby extending it over nine years rather than have his property seized and sold for the immediate payment of said obligation with ten per cent. attorney's fees added thereto at once.

Accordingly, we think the defendant is personally liable upon the notes which he signed, and plaintiff was at liberty to proceed either in rem against the property or in personam against the defendant. Kelly v. Mendelsohn, 105 La. 490, 492, 29 So. 894; City Sav. Bank & Trust Co. v. Wilkinson, 165 La. 385, 386, 115 So. 629; Dixie Inv. Co. v. Player (La.App.) 149 So. 269.

V.

The point is made that because the notes contain a clause declaring that they are payable (with interest and attorney's fees, if sued upon) "as per special paving assessment certificate attached hereto and made a part thereof," therefore the defendant incurred no personal liability because the paving assessment certificate itself imposed no personal liability upon him.

This is a non sequitur. True, the general paving law under consideration (Act No. 168 of 1926) imposes of itself no personal liability on the owner of the abutting property (section 8), but section 9 of said act clearly permits the owner to assume a personal liability, and, in our opinion, requires him to do so in order to obtain the benefit of the long extension of time granted by the statute if he consents to assign his notes for the amount of the assessment in order to prevent the immediate seizure of his property.

Moreover, a "promissory note" (and that is what the statute requires, and what the statute calls it) which imports no personal liability on the part of the drawer would be a legal anomaly, and contradictory of its own plain terms.

And further, if such a "promissory note" imports no personal obligation on the part of the drawer but is mere evidence of a right to proceed in rem against certain property, then the provision of the statute authorizing the municipality to transfer said promissory note "without recourse" is useless, a mere idle gesture as it were for in that case the only right transferred by the municipality when it transferred such note would be the mere right to proceed in rem against the property, and the transfer of such a right "without recourse" would simply be a meaningless jumble of words; for the seller or transferor of any...