Murphy v. Beard

• Decision Date: 21 September 1894
• Parties: MURPHY v. BEARD, County Treasurer.
• Court: Indiana Supreme Court

138 Ind. 560

38 N.E. 33

MURPHY

v.BEARD, County Treasurer.

Supreme Court of Indiana.

Sept. 21, 1894.

Appeal from circuit court, Huntington county; J. S. Dailey, Judge.

Action by Arthur Murphy against Isaac F. Beard, treasurer of Huntington county, for an injunction restraining the enforcement of an assessment, and to foreclose the county's right of redemption. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

Thos. G. Smith, for appellant. Milligan, Whitlock & Cook, for appellee.

HACKNEY, C. J.

The record presents the question of the sufficiency of two paragraphs of complaint to which the circuit court sustained a demurrer. The facts alleged in each paragraph were that the appellant held a tract of land by purchase under a mortgage of September, 1872, a foreclosure in April, 1879, a sale in 1889, and a sheriff's deed in 1890; that the appellee, as treasurer of Huntington county, was threatening to enforce against said land certain assessments of benefits from the construction of a free gravel road, which assessments were apportioned, and charged against said land in proceedings instituted before the board of county commissioners in March, 1881, and terminated before the appellant's purchase. It was also alleged that neither the mortgagee nor the purchaser was a party to the proceeding in which said assessments were made. The relief sought was, by the first paragraph, an injunction against the enforcement of said assessments, and, by the second paragraph, a decree that said assessments were junior to said mortgage, and that the county's right of redemption be foreclosed. The assessments were made under the act of March 3, 1877 (Rev. St. 1881, § 5091 et seq.; Rev. St. 1894, § 6855 et seq.). By the sixth section¹ of that act it was provided that: “The said assessment upon lands, under the provisions of this act, shall be placed upon a special duplicate, * * * and * * * shall constitute and be considered a first lien on the real estate assessed in the same manner as other taxes are.” One contention of the appellant is that section 8, Acts 1885 (Elliott's Supp. § 1479; Rev. St. 1894, § 6886), adds to the foregoing provision the qualification that such lien shall relate to the time of filing the petition, and that, therefore, no authority exists for giving the assessment priority over a mortgage executed before the filing of the petition. The act in which the provision referred to is found has been expressly held to constitute “a complete scheme or system for the construction of gravel roads, and for the method of procedure in making and collecting assessments,” and that it does not repeal or otherwise affect the provisions of the act of 1877. Robinson v. Rippey, 111 Ind. 112, 12 N. E. 141. Adhering to that decision, we conclude that the act of 1885 does not qualify or limit the lien provided by the act of 1877.

It is further insisted that the mortgagee and the purchaser at the foreclosure sale, not having been parties to the gravel-road proceeding, are not bound by the assessments. The act of 1877 does not contemplate adversary proceedings, nor that notice shall be given specially to the landowners, incumbrancers, or others interested. The jurisdiction of the board is invoked by ex parte petition, and all persons interested are notified by a general notice of the time and place of the viewers' meeting, the kind of improvement sought, and the places of beginning and terminus of the road, and of any intermediate points. After notice, exceptions may be filed and heard, and further proceedings continued. If, therefore, the mortgagee was a proper or necessary party to the proceeding, the general notice,² which, we presume, in the absence of allegations to the contrary, was given, was sufficient to bind him as a party to the same extent as if he had been specially named and notified as a party. As to the purchaser, his interests did not attach until after the assessments were made, and it could not have been anticipated that he should be named as a party. Being a purchaser under the mortgage, it is perfectly clear that he would be bound by any proceeding which bound the mortgagee.

It remains to be determined whether the mortgagee, treated as a party, lost the priorityof his mortgage day against the assessments. It will be observed that the enactment of the statute under which the proceedings were had was subsequent to the execution and recording of the mortgage, and it will be observed also that by the language of the statute the assessments were to “constitute and be considered a first lien on the real estate assessed, in the same manner as other taxes are.” The appellant insists that the intention of the...