Wolf & Schoening v. City of Philadelphia , 105 Pa. 25 ( 1884 )

Mr. Justice Clark

delivered the opinion of the court, February 4th, 1884.

The city of Philadelphia in the year 1875 built a sewer on that part of North Fourth street between Brown and Beaver. The contractor was Joseph Conklin,- who agreed to accept from the city assessment bills, endorsed by the Commissioner of Highways, as cash paid upon the contract; which bills he agreed to collect at his own cost, without recourse to the city in any event. The contractor had the right to use the name of the city and to employ all remedies or proceedings, whether of lien or otherwise, to which the city was competent, in their collection.

Schoening was at the time the owner of the premises No. 851, on the line of the sewer, having a frontage of forty feet on North Fourth street. His title was evidenced by a sheriff's deed duly registered, in which the lot was described as being “ On the East side of Fourth street, between Brown street and Poplar lane.” The charge for the construction of this sewer was fixed by an ordinance of the councils at $1.50 per foot. There can now be no doubt as to the right of the city to impose the burden of merely local improvements upon the property of those immediately benefited thereby to the extent of the benefits conferred. This principle has been well established in a long line of cases to which it is unnecessary to refer. Such a burden is a species of taxation, and the remedy for its collection as against the property charged is certainly a proceeding in rem and not in personam. The property itself, and not the owner, is debtor to the city for the amount of the charge.

We can see no reason however, why the defendant below might not have availed himself of the registry of his deed in the survey department as a defence to the lien. Since the Act of 14th March, 1865, and the supplement thereto of 29th March, 1867, the fact of registration requires that the property shall be charged and pursued in the name of the registered owner; and as there accompanied the deed a draft or plat which gave the dimensions and locality of the premises, it was improperly charged in any other name than that of Schoening. Although the deed was not.exact in its description of the property, its recitals were explained by the draft. The Registrar of the survey department, who was a witness at the trial, upon examination of the draft said without hesitation that it corresponded with the actual location of lot 851 North Fourth street in the plan of the city. It is admitted that Schoening owned no property on Fourth street other than the property charged with this lien; and it does not appear that'William Wolf owned any property on that street or any other. The use of Wolfs name in connection with the ownership of No. 851 was altogether unwarranted by anythiug which appears in the evidence.

But we think the defendant established a good defence by proof of actual payment prior to the entry of the lien, and that the court erred in charging the jury that the verdict should be for the plaintiff. At the completion of the sewer Schoening desired to have a license to make connection with it from his own lot, but he was informed by Conklin that this could not be done until he had made contribution to its construction by payment of tbe price at the rates stated.' Schoening then paid to Conklin the face amount, and took his receipt for it, and we presume that the connection was made. Assuming the authority of Conklin to receive the money,the payment was not in any general form, it was specific; it was in discharge of the claim which the city had upon the lot Schoening owned; the lot which he wished to have connected with the sewer. We cannot in the very nature of the case mistake the intention of the defendant as to the particular lot to which that payment was applied. It is not the case of a payment of money, applied by direction of the payor to one debt which he subsequently discovered he ought to have applied to another; the claim Schoening intended to pay he did pay ; the premises which Conklin by receiving the money intended to discharge, he did discharge. The whole difficulty arises out of the unfortunate expression of the receipt which was given. This receipt is dated October 4th, 1875, and in it the money is stated to have been paid “ for the construction of a sewer in front of the premises 741 North Fourth street.” This was a clear and palpable mistake. The “ premises 741 North Fourth street,’’ were not situated between Brown and Beaver streets, but in another block; they were not on the line of the sewer at all, and Mr. Schoening neither owned them nor pretended to own them. A receipt is but an acknowledgment, and like any other acknowledgment is open to contradiction or explanation and correction ; it is not a contract inter partes. Jones v. Patterson, 1 W. & S., 321; Batdorf v. Albert, 9 P. F. Smith, 59. This receipt was an acknowledgment of the receipt of the money, and if it appeared that it did not properly disclose the intentions of the parties, the subject was susceptible of other proof; it does appear that the money was paid and received in discharge of the premises 851 instead of 741 North Fourth street; the receipt is palpably erroneous, and becomes unimportant.

But it is said that Conklin had no authority from the city, on the 4th October, 1875, to receive the money. This is perhaps true, and therefore Conklin agreed that, in a few days, he would deliver to Schoening a department receipt for the money. On the liext day the contractor obtained an assignment of the assessment bill against Schoening from the Chief Commissioner of Highways and his local assistant, and, having receipted it, delivered it to Schoening in accordance with his previous promise.

The sheriff’s deed was in evidence, but we are not furnished with a copy. It was stated in the argument, however, that the. premises therein described had been sold by the sheriff as the property of William Wolf, who was owner thereof prior to the sale. The certificate of registration endorsed thereon implies that the sheriff’s conveyance, “with the precise dimensions and locality of the premises,” was duly reported to the Registry Bureau, and that the fact of the transmission of the title from Wolf to Schoening was properly noted in the plans of the citv on file in that department.

It was the Wolf lot which Schoening owned, and that fact thus appeared in the survey department upon exhibition of the sheriff's deed. Schoening owned no other, and the city had no other valid claim against him which it could assign to Conklin.' The assessment bill, in its description of the premises, was manifestly a mere blunder, for which the city was responsible. Schoening had a right to assume not only that the bill conformed to the registry, but that the registry was correct. It was for the protection of the property holders, in part at least, that registration of deeds was required, and they have a right to assume that assessments of taxes, or other municipal claims, are made in accordance therewith.

The defendant below, by this blunder, which was from no fault of -his, has been subjected to an expensive, protracted, and useless litigation. It is very clear that he paid the money in relief of his lot, No. 851, although the lot correctly described in the assessment bill transferred was lot No. 841 North 4th street. It was so received by the contractor. The bill was intended to cover the lot which. Schoening owned — the Wolf lot — the deed for which was registered. The contractor so regarded it when it was assigned, and having entered a receipt upon it sent it to Schoening upon the footing of the previous payment. This receipt was no discharge of lot No. 841, because the payment was not made for the charges against that lot. It was perfectly competent for the city to have proceeded against Lot No. 841, and the receipt, if produced, was susceptible of a clear explanation. The loss, if any has been sustained, is the loss of the city.

The judgment is reversed, and a venire facias de novo awarded.