Stafford v. Childs

• Decision Date: 01 April 1921
• Docket Number: 10,796
• Citation: 130 N.E. 429,75 Ind.App. 285
• Parties: STAFFORD ET AL. v. CHILDS
• Court: Indiana Appellate Court

130 N.E. 429

75 Ind.App. 285

STAFFORD ET AL. v. CHILDS

No. 10,796

Court of Appeals of Indiana

April 1, 1921

From Dekalb Circuit Court; D. W. Whiteleather, Special Judge.

Action by John G. Childs against Perry Stafford and others. From a judgment for plaintiff, the defendants appeal.

Reversed.

W. W Sharpless and Henry C. Springer, for appellants.

Edgar W. Atkinson, for appellee.

OPINION

NICHOLS, J.

Appellants present error of the court in overruling their demurrer to the complaint, and in overruling their demurrer to appellee's reply to their answer, but the substantial questions involved in such rulings and in this case are presented by special findings of fact made by the court at the request of both parties. By such findings it appears that prior to June 4, 1914, the city of Garrett was a duly incorporated city of Dekalb county, Indiana. The town of Altona was an incorporated town of said county, lying immediately west and adjoining the said city of Garrett. Appellant Zumbrunner was the owner of certain real estate within said town, but lying immediately west of the line dividing said town from said city. On June 4, 1914, the common council of said city duly enacted an ordinance extending the corporate limits of said city so as to include the said town. Within the time required by law the statutory number of voters of said town filed a remonstrance with the clerk of the Dekalb Circuit Court, remonstrating against such ordinance extending the corporate limits of said city so as to include said town. On August 1, 1916, said remonstrance was heard by the court which, after hearing evidence rendered judgment in favor of said remonstrants and against said city, and entered judgment that said town should not be annexed to said city. There was no appeal from such judgment and the same is still in full force and effect. The board of said town continued to hold its regular meetings and to govern said town, and at no time relinquished or surrendered its government to said city. On October 26, 1915, the common council of said city adopted a resolution for the establishment of the sewer here involved, which said sewer extended along the street in front of appellants' real estate in said town and terminated in a drain to the west, which drain had been theretofore constructed by the Dekalb Circuit Court. It is provided in the said resolution that the cost of such improvement should be apportioned against and paid by the property holders whose properties abut thereon. After notice of the sale and construction of said sewer, appellee presented his bid therefor, and it, being the lowest bid, was accepted and appellee thereupon entered into the contract for the construction of such sewer, and thereupon entered into the construction thereof, completed it according to plans and specifications, and it was accepted by the engineer in charge and by the common council of said city, prior to the rendition of the judgment in the Dekalb Circuit Court in favor of the remonstrants aforesaid, and against said city. Appellant Zumbrunner was the owner of the real estate here involved in the year 1914, and then entered into a written contract with appellant Stafford by the terms of which said Stafford agreed to purchase of said Zumbrunner. Stafford took possession of said real estate and was residing thereon at the time of the construction of said sewer. By the declaratory resolution establishing said sewer, the contract was to extend tile from said sewer to the property line of abutting property owners for the benefit of such abutting property owners. At the time of placing such extension appellant Stafford told the engineer in charge, in the presence of appellee, where he wanted such extension placed and the same was placed at the point directed by said Stafford. Appellant Zumbrunner had knowledge of the construction of said sewer. Neither one of appellants protested against its construction or objected thereto, or to the tile extension made to the property line of their said lot. Appellant Zumbrunner resided about three miles from said town, but on one occasion during the construction of the sewer went to the lot and ascertained that the sewer was being constructed. The common council of said city made assessments for the construction of said sewer and appellants were assessed $ 92.34. Due notice was given of the time and place to make objections but neither appellant appeared before the common council and objected to such assessment. The same was not paid when due, and was assigned to appellee who, six weeks prior to the beginning of this action, by United States mail demanded payment of appellants. The construction of said sewer increased the value of appellant's real estate. Appellant Stafford conversed with appellee during the construction of the sewer, and had knowledge that the sewer and tap were being constructed. Appellee constructed the sewer in good faith believing that the establishment of the sewer and the annexation ordinance were legal and regular. On these findings, the court stated conclusions of law to the effect that (1) The contract was legal and binding upon said city, and upon appellee; (2) that appellants are estopped from claiming that said assessment is not legal and an effective lien on said real estate; (3) that appellee has a lien against said real estate in the sum of $ 92.34, plus $ 25 attorney's fees for enforcing such lien, and that the total amount due appellee is $ 117.34, which said amount is past due and unpaid, and the lien should be foreclosed and the real estate sold to pay the same.

Appellants contend that the conclusions of law do not correctly state the law for the reason that where an assessment is made without color of law, or without a statute expressly authorizing the same, no lien can be created against the real estate, and the doctrine of estoppel cannot apply, and that therefore the property owner is not estopped to deny the validity...