Edward C. Jones Co. v. Perry , 26 Ind. App. 554 ( 1900 )

Henley, J.

The common council of the city of Alexandria, in the year 1893, by proceedings in every way proper so far as the record in this cause shows, improved the portion of Harrison street extending north from Madison street to Taylor street in said city. The proceedings were had and improvement made under §§4288-4298 Burns 1894, being what is commonly known as the Barrett law. The total cost of this improvement was $22,077.48, which amount was duly apportioned and assessed against the real estate abutting on the improvement according to the frontage of the several lots along the same. The appellee in this cause was and still is the owner of certain real estate which was assessed for its portion of the cost of the improvement, the amount of the assessment against appellees’ property being $722.19. The amount of this assessment became a lien against appellees’ real estate, said real estate being alone liable for the same, and no personal judgment could have been rendered against appellee for the amount of said assessment, unless by some act of appellee himself he became personally liable for the amount. When the improvement was completed, appellee, by the terms of the statute, could have paid his assessment and satisfied the lien existing upon his real estate, or he could have permitted his real estate to be sold to discharge said lien, or he had the privilege, under the statute, of executing a waiver and agreement to pay the said assessment in ten annual instalments with interest. Appellee took the latter course and executed the waiver and agreement permitted by the statute under which the work was done. The record shows that other persons affected by this improvement, together with the appellee, executed the waiver and agreement contemplated by the statute, and that the total amount of the assessment against the property of the persons so executing the waiver and agreement amounted to $16,370, and that street improvement bonds to said amount were issued by the city of Alexandria and turned over to the contractors in part payment for said improvement. These bonds were sold and transferred by the contractors to the appellant, and this action was commenced by appellant against- the appellee to enforce the collection of certain instalments on appellee’s assessment which were dne and unpaid. By appellant’s complaint it is sought not only to enforce the lien of said assessments against appellee’s said real estate, but also to procure a personal judgment for said amount against appellee. This personal judgment is sought under the terms of the waiver and agreement executed hy appellee, and in order to protect appellant against loss in case appellee’s real estate should fail to sell for a sum sufficient to pay said assessment. Upon the trial of the cause, the court made a special finding of facts and stated its conclusions of law thereon. To the conclusions of law, appellant excepted. The only error assigned in this court is that the lower court erred in its second conclusion of law stated on the special finding of facts. The second conclusion of law to which objection is made by appellant is “that plaintiff is not entitled to personal judgment against the defendant Solomon Perry.”

The pleadings have been in no way attacked, and it is conceded that the record presents the question argued hy counsel. By the special finding of facts the court found all the facts necessary to establish the lien of the assessment upon appellee’s real estate. The court also made the following finding numbered eighteen in its special finding of facts, viz.: “That within two weeks from the date of approval of said final estimate and report property owners along the said part of said street so1 improved and owning real estate abutting thereon, filed with the clerk of said city their contract and agreement in writing in the words and figures following, to wit: The undersigned, having been respectively assessed in excess of $50 for the construction of Uortk Harrison street between Madison and Taylor streets, in the city of Alexandria, in the county of Madison, State of Indiana, hereby severally promise and agree, in consideration of having the right to pay their respective assessments for said improvement in instalments, that they will not make any objection to their respective assessments as to the illegality or irregularity of the same, but will respectively pay the said instalments with interest thereon at such rate, not exceeding six per cent, as shall by ordinance or resolution of the common council of said city be prescribed and required. Dated October 30, 1893.” Signed to this agreement and waiver, along with others, appears the name of appellee. The above agreement was such an agreement as the act under consideration authorizes the assessed property owner to execute. That part of the act authorizing the execution of the waiver and agreement is as follows: “Should any one of such assessments exceed the sum of $50, then if the owner of the lot or parcel against which said assessment is made, may, if he, within two weeks after the making of such assessments, shall promise and agree, in writing, to be filed with the clerk of such city or town, and to be spread of record by him in consideration of the right to pay his or their assessment, or respective assessments in instalments, that they -will not make any objections to illegality or irregularity as to their respective assessments, and will pay the same, with interest thereon, at the rate of pot exceeding six per centum per annum, as shall by ordinance or resolution of the common council of such city, or board of trustees of such town, be prescribed and required, he or they shall have the benefit of paying said assessments in ten annual instalments, as hereinafter provided.” §4294 Bums 1894.

As to the agreement executed under this statute we find no room for construction other than the plain and common meaning to be given to the words employed. The consideration for the agreement is expressly stated in the language of the statute to be in consideration of the right to pay his or their assessments in instalments.' For such consideration the assessed property owner agrees (1) that he will not make any objection to the illegality or irregularity of his assessment; (2) that he will pay such assessment in instalments with interest thereon at a rate not exceeding six per centum per annum.

This court held in the case of Richcreek v. Moorman, 14 Ind. App. 370, that the assessed property owner could not, after signing the agreement contemplated by §4294, supra, be heard to question the irregularity or illegality of his assessment. If that part of the statute which permits the property owner to waive an illegal or irregular act is to be enforced, is it right that his plain, unequivocal agreement to pay, founded upon a valid consideration therein expressed, should be held of no effect ? We think not. Every element of a debt is present. The obligation arises out of an express contract. It entitles the creditor to receive from the promisor unconditionally a certain sum of money, the amount of which is fixed, and which the promisor is under a legal duty to pay without regard to any -future contingency. State, ex rel., v. Hawes, 112 Ind. 323; Mayor, etc., v. Gill, 31 Md. 375.

The statute under consideration does not, nor does it attempt to, create a personal liability upon the part of the property owner whose property may be assessed under its provisions. It simply provides a way by which the assessment may be paid in instalments. It provides a way by which the property owner, at his own option, can agree to pay. He becomes personally liable, not by force of the statute, but by his own agreement made after the debt is created, and for a valuable consideration — the extension of the time of payment. It is the history of the growth of cities and towns that the real estate therein at times rapidly increases in value and at other times as rapidly decreases in value. The lots and parcels of land abutting upon a street may be worth many times the amount of the assessments levied upon them at the time the improvement is made and the assessment falls due, and in a short time thereafter may be ■worth less than the assessment; hut the cost of the improvement is fixed; the contractor has already expended his money. If permitted to foreclose his statutory lien at the time the assessment falls due, he would obtain his money; but the owner of the property, by an agreement which the statute simply permits, defers the time of payment for ten years. In order to do this he agrees to pay the debt. We can not hold that after so contracting, he can, if his property decreases in value to a point where it is not worth as much as the debt, throw the assessed real estate with the resulting loss upon the holder of the debt and thus escape the consequences of his own act. We are satisfied that the legislature did not so intend.

In the case of Quill v. City of Indianapolis, 124 Ind. 292, 7 L. R. A. 681, cited by appellees’ counsel, the question here under consideration was not before the court. The position occupied by appellee is very similar to that of the purchaser of mortgaged real estate who buys subject to the mortgage; he does not incur a personal liability to the holder of the mortgage; hut when the debt secured by the mortgage falls due, he could by contract agree to pay the debt if divided into ten equal annual instalments. No one would contend that such an agreement did not create a personal liability. In the case at bar, we have an agreement duly executed; such an agreement as the statute expressly permits; a valid consideration expressed therein. We would do violence to the plain meaning of the words employed to hold other than that appellee became personally liable for the amount of the assessment against his real estate by the execution of the waiver and agreement herein set out. . The lower court erred in its second conclusion of law stated upon the facts found.

The judgment is reversed, with instructions to the lower court to restate its conclusions of law and render judgment accordingly.