Knowles v. Temple

• Decision Date: 13 June 1908
• Citation: 49 Wash. 595,96 P. 1
• Parties: KNOWLES v. TEMPLE.
• Court: Washington Supreme Court

96 P. 1

49 Wash. 595

KNOWLES v. TEMPLE.

Supreme Court of Washington

June 13, 1908

Appeal from Superior Court, Pierce County; George T. Reid, Judge.

Action by Samuel C. Knowles against Mary S. Temple on a covenant of warranty contained in a deed. From a judgment for defendant plaintiff appeals. Affirmed.

T. W Hammond, for appellant.

Walter Loveday, for respondent.

RUDKIN J.

On the 5th day of September, 1906, the city council of the city of Tacoma adopted a resolution of intention to improve one of the city streets, and created an assessment district for that purpose. At that time the defendant was the owner of certain lots abutting on the street to be improved and included within the assessment district. On the 27th day of December 1906, she conveyed the lots to the plaintiff, covenanting that they were free and clear of all liens, charges, and incumbrances. Work was commenced on the improvement on November 7, 1906, and the improvement was completed on February 12, 1907. On the 28th day of February, 1907, the assessment roll in the matter of the improvement was confirmed by the city council, and on March 1, 1907, the roll was placed in the hands of the city treasurer for collection. The assessment against the lots in question amounting to the sum of $295.75, was thereupon paid by the plaintiff, and this action was instituted to recover the amount from the defendant under the covenant against liens, charges, and incumbrances contained in the deed. From a judgment in favor of the defendant, the plaintiff has appealed.

The appellant contends that the lien of the assessment attached at the inception of the proceedings for the improvement of the street, the resolution of intention in this case, and that a breach of the covenant of warranty was therefore established. The respondent, on the other hand, contends that the lien did not attach until the assessment roll was placed in the hands of the city treasurer for collection, under the provisions of Act March 16, 1901 (Laws 1901, p. 240, c. 118), or until the completion of the improvement, under the rule announced by this court in Green v. Tidball, 26 Wash. 338, 67 P. 84, 55 L. R. A. 879. No lien for general taxes or special assessments exists by virtue of the common law. Such liens are purely of statutory origin, and we must look to the statute for the time of their commencement and their duration. As said by this court in Phelan v. Smith, 22 Wash. 397, 61 P. 31: 'It will not be disputed, we think, that tax levies are purely statutory; and it is for the Legislature to determine the time when the lien shall attach, and to settle all questions of public policy of that kind. The general rule is that taxes are not a lien unless expressly made so, and when liens are expressly created, they are not to be enlarged by construction.' Acts creating liens on property benefited by local improvements may not fix the time when the lien attaches, and in such cases the courts must determine that fact from a consideration of the entire act. When no time if fixed it is sometimes held that the lien attaches when the improvement is ordered, sometimes when the improvement is completed, and sometimes when the amount of the assessment or charge is fixed or determined as the legislative intent may appear. Blackie v. Hudson, 117 Mass. 181; Green v. Tidball, supra; Harper v. Dowdney, 113 N.Y. 644, 21 N.E. 63.

But when the Legislature has declared that the lien shall attach at a given time, or upon the happening of a given event any attempt on the part of the courts to fix a different time would be judicial legislation. Section 1 of the act of 1901, supra, provides that: 'Such charge when assessed and the assessment roll confirmed by the...