McCollum v. Uhl

• Decision Date: 19 May 1891
• Citation: 128 Ind. 304,27 N.E. 725
• Parties: McCollum et al. v. Uhl.
• Court: Indiana Supreme Court

128 Ind. 304

27 N.E. 725

McCollum et al.

v.Uhl.

Supreme Court of Indiana.

May 19, 1891.

On rehearing.

McBride, J.

Appellees' counsel have filed a very earnest and ingenious brief in support of their petition for a rehearing. They say two questions are involved: (1) Is it possible to extinguish the lien of a ditch assessment by the foreclosure of a superior tax-lien? (2) Who are necessary parties to a suit for that purpose? There can be no doubt that it is possible to extinguish the lien of a ditch assessment by the foreclosure of a superior tax-lien. No such question confronts us in this case, for the reason, as stated in the original opinion, that there was no attempt to foreclose the tax-lien as against the ditch assessment. Counsel now say: “When a lien such as a ditch assessment exists, and has not reached the period of vesting, the effect of foreclosing a superior lien is not to bar an equity of redemption,-none exists,-but to extinguish the lien itself.” The error in appellees' position is that they assume that there can be a valid ditch assessment in which no one has an interest entitling them to be made parties to a proceeding seeking its extinguishment, and that it is possible by a decree of court to extinguish the lien of such assessment without having before the court any of the parties interested in it. The complaint shows the establishment, by order of the board of county commissioners, of a ditch across the land in question, and that the sum of $261.52 was assessed against it as the proportion properly chargeable thereon for the construction of the ditch. This the complaint also shows was done long before the proceeding was commenced to foreclose the taxlien. All who were beneficially interested in the construction of the ditch were interested in the assessment thus made against the particular land. A ditch established by order of the board of county commissioners for the drainage of wet lands, although it may pass over the lands of many men, and be divided into many allotments for its construction, and the cost of construction may be apportioned to many different tracts, yet is to be considered as an entirety, and the several allotments and assessments as parts of an entire system. For instance, suppose the allotment to the land in question was of the terminal section of the ditch, and, unless it was constructed, there would be no outlet, could it be said that the owners of lands lying above and assessed for the...