VoRse v. Des Moines Marble & Mantel Co.

• Decision Date: 27 January 1898
• Citation: 104 Iowa 541,73 N.W. 1064
• Parties: VORSE v. DES MOINES MARBLE & MANTEL CO.
• Court: Iowa Supreme Court

104 Iowa 541

73 N.W. 1064

VORSE

v.DES MOINES MARBLE & MANTEL CO.

Supreme Court of Iowa.

Jan. 27, 1898.

Appeal from district court, Polk county; W. F. Conrad, Judge.

January 22, 1884, other parties executed a lease to a certain lot in the city of Des Moines, Iowa, to which lease the parties to this suit have succeeded in interest, the plaintiff as lessor, or party of the first part, and the defendant as lessee, or party of the second part, and a consideration of the case does not require a reference to other parties. The lease provided that the lessee should pay, aside from the annual rental, all taxes and assessments, of every kind and nature, that might be assessed against said lot, including street paving and curbing, during the continuance of the lease. The term of the lease was from March 1, 1884, to March 1, 1894. During the year 1893 four assessments were made against the lot,--two for curbing and two for paving. For all of such paving certificates were issued, and on the back of each the defendant signed a written waiver and agreement, under the law for making such assessments payable in installments instead of all at one time. The first installment of the assessments was paid by defendant, March 3, 1894, but it denies any liability for the payment of the balance of the assessments, and this action is, in part, to recover such amount. Plaintiff also seeks to recover for rent after the expiration of the lease, the facts as to which can better be stated in connection with the consideration of the question. The district court gave judgment for plaintiff on both claims, and the defendant appealed. Modified and affirmed.McVey & McVey, for appellant.

Davis & Davis, for appellee.

GRANGER, J.

1. We notice first the question as to defendant's liability for the unpaid balance of the assessments. The facts in the case are so far stipulated that there is really no question of fact at issue. As much importance, in argument, is attached to the fact of the assessments being payable in installments, it may be well to at once consider the law on that subject, and ascertain how the assessments are affected by it. It is appellee's claim that as to her, at least, there is no such right, because she is the owner of the lot, and only the owner can, under the law, make the waiver and agreement by which such right is obtained. The following are sections 17, 18, c. 168, Acts 21st Gen. Assem. § 17:

“Sec. 17. Whenever the owner or owners of any lot or lots, the assessment or assessments against which is or are embraced in any such certificate, shall severally promise and agree in writing endorsed on such certificate that, in consideration of having the right to pay his or their assessment or respective assessments in installments, they will not make any objection of illegality or irregularity as to their respective assessments, and will pay the same with interest thereon, * * * he or they shall have the benefit and be subject to all the provisions of this act authorizing the payment of assessments in annual installments relating to the lien and collection and payment of assessments so far as applicable.

Sec. 18. Any owner of any lot or lots assessed for payment of the cost of any such improvements, who will not promise and agree in writing as provided by section seventeen hereof, shall be required to pay his assessment in full, when made, and the same shall be collectible by or through any of the methods provided by law for the collection of assessments for local improvements, including the provisions of this act.”

It will be seen that the right of payment by installments is not primary or absolute, but conditional, and based on an undertaking in writing to waive legal objections and pay absolutely the principal and interest. The form of agreement on the back of each certificate is as follows: “I, _____, in consideration of having the right to pay the assessment mentioned in the within certificate in installments, as provided by law, do hereby agree that I will not make any objections of illegality or irregularity as to said assessment, and I will pay the same, with interest thereon at the rate of six per cent. per annum, and all penalties, as provided by law, from the date of said assessment.” The defendant signed this agreement on each certificate, because of which a payment in full at one time was avoided and annual payments permitted. The law says the owner of the lot may make this agreement. Technically, at least, the plaintiff is the owner. It is not necessary that we should say that only the fee title owner is within the meaning of the statute, and could make such agreement and waiver. Certain it is that none other is such owner, and can make the agreement, if only the fee title owner is obligated for the payment. The effect of the agreement made by defendant was to postpone payments for which it asserts, in this suit, that it is in no way liable. Because of its own act, in making the assessment payable in installments, instead of at once, it argues that the lease only contemplates payments of taxes within the years of occupancy, and not future years. The difficulty is that this assessment was all for one of the years of occupancy, and must have been paid as such, had defendant not engaged, in writing, to pay it later. If it was an assessment for 1893, payable at one time, it was, confessedly, the defendant's obligation. That it was so, independent of defendant's agreement, admits of no doubt. Could defendant shift the obligation by such an agreement? We do not argue the proposition.

Thus far we have considered defendant's liability without determining the significance of the word “owner” in connection with its right to make the agreement and secure the right of payment by installments. Another proposition in the case is as to the validity of the judgment for the full amount; for, in fact, when the suit was commenced, no other installment was due, and, if defendant's agreement is valid as to the plaintiff, there could be no right of recovery. As between a lessee, liable for such assessments, and the public or a certificate holder, there are considerations that suggest a construction of the law favorable to the lessee. There are not the same considerations as between the lessee and lessor. This payment of assessments and taxes is in the nature of rental for the use of the lot, and we are not to assume that the amount actually to be paid is not what the parties contemplated; that is, they contracted with reference to what might or might not...