Tomes v. Thompson
| Decision Date | 03 October 1930 |
| Citation | 112 Conn. 190,151 A. 531 |
| Court | Connecticut Supreme Court |
| Parties | TOMES v. THOMPSON. |
Appeal from Superior Court, Fairfield County; Edward M. Yeomans Judge.
Action by George H. Tomes against Ole Thompson to foreclose a mortgage on real estate. A demurrer to the cross-complaint was sustained, and an amended cross-complaint was filed, a demurrer to which was also sustained, and judgment rendered for plaintiff, from which defendant appeals.
Error and cause remanded.
Clifford B. Wilson, of Bridgeport, for appellant.
Robert C. Mallette, of Bridgeport, for appellee.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.
The complaint is for the foreclosure of a mortgage upon real estate located in the town of Stratford. The defendant filed a cross-complaint in three counts. A demurrer to the first and second counts was sustained (Jennings, J.) and the defendant amended his cross-complaint by adding a fourth count. A demurrer to this fourth count was sustained (Yeomans, J.), the third count was withdrawn, and, the defendant failing to plead further, judgment was rendered in favor of the plaintiff. The defendant appeals from the rulings of the court sustaining the demurrers to the cross-complaint and the amended cross-complaint.
The first count of the cross-complaint alleged that on July 28 1921, and prior to the giving to the plaintiff by the defendant of the mortgage described in the complaint, the plaintiff deeded to the defendant the property described in the complaint by a warranty deed containing the usual covenants of warranty " against all claims and demands whatsoever" ; that in 1917 it was determined to construct a sewage system and sewage disposal plant in the town of Stratford, which work was undertaken in 1919, and the sewage system completed and accepted on August 4, 1921; that on August 16, 1921, the sewer commissioners of the town met and determined that the sum of $291.66 should be assessed against the property conveyed by the plaintiff to the defendant on account of the cost of such sewage system, a lien for which amount was duly filed against the property, and a judgment of foreclosure of such lien obtained by the town against the defendant. The second count incorporated the allegations of the first count as to the covenants in the deed from the plaintiff to the defendant and the determination of the town to construct a sewage system and sewage disposal plant, and alleged that the sewage disposal plant was completed and accepted on November 3, 1921, that on January 24, 1922, the amount of $43.40 was assessed against this property on account of the cost of such disposal plant, a lien for which amount was duly filed against the property and a judgment of foreclosure of the lien obtained by the town against the defendant. The plaintiff demurred to both counts upon the ground that it appeared from the allegations thereof that in each case the assessment was made and the lien took effect subsequent to the date of the transfer of the property by the plaintiff to the defendant.
The single question presented by the demurrer to these two counts of the cross-complaint is as to the date when the liens of these assessments for the sewage system and sewage disposal plant attached to this property. If they attached at the time the work was authorized or commenced, as claimed by the defendant, the cross-complaint set up a good cause of action for breach of warranty, and the demurrer should have been overruled. If they did not attach until the work was completed and the assessments laid, the demurrer was properly sustained.
The incidence of the lien of an assessment of benefits accruing from a public improvement is to be determined from a consideration of the terms and conditions of the statute or ordinance creating the lien. This sewage system and sewage disposal plant were constructed by the town of Stratford under the provisions of chapter 264, p. 911, of the Special Laws of 1913, as amended by chapter 447, p. 1216, of the Special Laws of 1917, and chapter 25, p. 357, of the Special Laws of 1921. This act as amended authorized the board of sewer commissioners of the town to adopt a plan for sewage disposal in the town and to construct a sewage system and sewage disposal plant. It authorized the board, after notice to all persons interested, to assess the expense of such public improvement upon any property benefited thereby and provided (section 6 of chapter 25, p. 359, of the Special Laws of 1921) that " all assessments of benefits made under this act and the amendments thereof shall be a lien upon the property specially benefited thereby *** provided no lien shall continue to exist for more than sixty days after such assessment shall become payable or such expense shall have been incurred, as the case may be," unless within such period a certificate is lodged with the town clerk as provided therein. The special act does not expressly fix the date of the incidence of the lien, but it is apparent that it cannot antedate the laying of the assessment, since it is the assessment itself which constitutes the lien. The language of the act is that the assessment " shall be a lien upon the property specially benefited," and, in the absence of any provision that the lien shall relate back to the time when the work was ordered or commenced, or any other fixed date, there can be no lien until there is an assessment-the lien can have no existence prior to the date of the act which constitutes it. That act is, not the commencement of the work of constructing the public improvement in question, but the making of the assessment of the expense of the improvement upon the property benefited. That assessment cannot of course be made until the work is completed and the cost ascertained. The proviso that no lien shall continue to exist for more than sixty days after the assessment becomes payable or the expense has been incurred indicates that the act does not contemplate the existence of a lien prior to that time.
Dann v. Woodruff, 51 Conn. 203, was an action to recover damages for breach of the covenant against incumbrances in a mortgage deed; it being claimed that the lien of an assessment for street ...
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...of the pleading demurred to, which cannot be aided by importing into it facts not therein alleged.' Tomes v. Thompson, 112 Conn. 190, 198, 151 A. 531, 534, 72 A.L.R. 297. The function of the court on demurrer is to consider the whole record and give judgment for the party who, on the whole,......
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