Lyon v. Alley

This is a suit in equity, brought by the appellee in the supreme court of the District of Columbia, to remove clouds from, and to quiet the title to, certain real estate in the city of Washington. The property is described as lots 1 to 12, inclusive, square 156, fronting on the north side of P street north, between Seventeenth and Eighteenth streets west, in that city, and was at one time owned in fee-simple by the plaintiff, John B. Alley, who subdivided the lots, and sold portions thereof to certain persons named, to whom he gave bonds of indemnity as a security against the claim of the defendant, Isaac S. Lyon. Alley and his grantees are in actual possession of the property, and this suit is brought, therefore, for the benefit of all of them. The claim of the defendant is derived from certain certificates of tax-sale issued to him by the District of Columbia, October 15, 1881; the tax being a special improvement tax for setting the curb-stones and paving the footways and gutters along the front line of the property. The bill, after alleging these facts, sets out the various steps and processes by which the claim of the defendant originated, which is alleged to be invalid and illegal, and charges that the said certificates were issued without authority of law, and are not any evidence of title to, or lien upon, the said lots. The relief asked for is a decree declaring the tax-sale void, and an injunction against Lyon from setting up any right, title, or claim by virtue of the certificates issued to him on his purchase. The defendant answered denying the validity of the title of the plaintiff and his grantees, and also filed a cross-bill setting out in detail the proceedings by which his own claim originated; alleging that such claim was valid and legal, and superior in law and in equity to that of the plaintiff and his grantees; and praying that his certificates might be decreed a lien upon the lots. Upon an agreed statement of facts, the court at special term rendered a decree in accordance with the prayer of the cross-bill. Upon appeal to the court in general term that decree was reversed, and a decree made in accordance with the prayer of the original bill; and an appeal from the latter decree brings the case here.

The material facts, as gathered from the record, are substantially as follows: On the 2d of November, 1869, the then corporation of the city of Washington passed the following act: 'Be it enacted * * * that the mayor be, and he is hereby, authorized and required to cause the curb-stones to be set and the footways and gutters paved on the north side of P street north, between Sixteenth street west and Rock creek, the work to be contracted for and executed in the manner and under the superintendence provided by law, and to defray the expenses of said improvements a special tax, equal to the cost thereof, is hereby imposed and levied on all lots or parts of lots bordering on the line of the improvement; the said tax to be assessed and collected in conformity with the provisions of the act approved October 12, 1865.' Acts 67th Council, c. 236, p. 116. The act of October 12, 1865, referred to, extended prior acts of May 23 and 24, 1853, to special improvements thereafter made, and provided that the cost and expense of every local improvement thereafter made, 'unless otherwise provided for in the act or acts ordering the same, shall be levied, assessed, collected, and paid, and the payment thereof enforced,' as provided in those acts. Webb, Dig. 360-362. The act of May 23, 1853, (Webb, Dig. 155,) provided for proposals for setting curbstones, etc., petition for the improvement and plan of the property, time within which the improvement is to be made, and by its fifth section required the appointment of two assistant commissioners. Its sixth section reads as follows: 'So soon as the setting and paving of any such curb-stone and footway shall have been completed by the commissioner of improvements, he shall deposit with the register a statement, exhibiting the cost of setting the curb-stone and paving the footway in front of each lot or part of lot, separately, and the amount of tax to be paid by each proprietor of said lots or parts of lots; and the register shall then, without delay, place in the hands of the collector of taxes a list of the persons chargeable with such tax, together with the amount due by each person; and the collector shall, within ten days after receiving such list, give notice in writing to each proprietor, if residents of this city; if non-residents, then to their tenants or agents, if known, stating the amount of tax by them respectively due, and requiring that the same be paid within thirty days from the date of such notice; and if any of the taxes so due shall remain unpaid for more than thirty days after the date of such notice, then the said collector shall proceed to collect the same, together with interest in addition thereto at the rate of ten per centum per annum, to be computed from the date of the commissioner's return to the register, in the same manner as other taxes upon real property are by law collected; and the collector shall deposit the same in bank to the credit of the ward entitled thereto, first deducting the commissions prescribed for collecting the same.'

The eighth section provided that such work shall be paid for by certificates of stock, commonly known as 'paving stock,' issued by the mayor and given to the contractor, and redeemable from time to time as the taxes were collected. None of the provisions of the act of May 24, 1853, are important in connection with this case. The act of June 10, 1867, (Webb, Dig. 467,) created an officer known as superintendent and inspector of improvements whose duty it was to prepare plats and fix grades, and to superintend the paving of footways, etc., and provided that, with two assistant commissioners to be appointed by the mayor from among those along or near the line of any proposed improvement, he should have the exclusive control of such improvement; further that the superintendent and inspector should 'be charged with the duty of making all assessments on lots bordering on any street, alley, or avenue which shall have been paved,' etc. The last act on the subject, that of October 28, 1867, (65th Council, c. 6,) provided that all taxes for paving, etc., should be payable in four installments, one-fourth within thirty days after the service of the notice by the collector of taxes, and the remaining three-fourths in three equal annual payments, for which certificates of indebtedness, bearing interest at the rate of 10 per centum per annum, and chargeable against the property involved, should be issued by the mayor to the contractor. The lots in question are situated in what was formerly the First ward of the city of Washington, along the line of street the pavement of which was provided for by the act of November 2, 1869, supra, and were at that time owned by one Thomas Young. On the 1st of April, 1870, the corporation of Washington contracted with one Henry Birch to set the curb-stones and pave the footways and gutters in the First ward of the city; and between that date and November 16, 1870, he performed that part of the work bordering upon the lots in question, and the same was accepted by the corporation. Its cost was $2,054.10. At that time William Forsyth was the superintendent and inspector of the paving of carriage-ways and footways of the corporation under the act of June 10, 1867 When the work under Birch's contract was completed, Forsyth, as it was his duty to do, entered all of it in the ward-book, with the proper proportionate charge against each lot, with the exception of that appertaining to the lots in question. As to these no entry was made until November, 1871, when the following was interlined in red ink: 'Entered November 17, 1870. This work was done at this date, but, by request of the owner, not entered until Nov. __, 1871. WM. FORSYTH, S'v'yor, D. C.' On the 13th day of January, 1871, there were issued to Henry Birch 52 certificates of paving stock for the four installments, being for the entire amount on the assessment roll, except as to the 12 lots in question. Between November, 1870, and November, 1871, to-wit, February 21, 1871, the government of the city of Washington was succeeded by that of the District of Columbia, and Forsyth became the surveyor of the District.

The contractor testifies on oath that he had nothing to do with the omission of the lots in question from the assessment roll, and, in fact, knew nothing of such omission; that during the progress of the work the owner of the lots, Thomas Young, promised in person to pay in full for the improvements when finished, provided he, Birch, would deduct 10 per cent. from the contract price, and that he, Birch, agreed to this arrangement. When the entries relative to the lots were made, in November, 1871, the collector entered the amounts in the 'special ledger' in his office as assessed against the lots, and then gave the notice thereof prescribed by law. Certificates of indebtedness against the lots, agreeably to the act of October 28, 1867, were therefor issued to the contractor, who sold and transferred the same to the appellant, Lyon, for value before maturity. After their maturity, and for default in their payment, Lyon procured the collector of taxes of the District of Columbia, in 1881, to sell the lots in question, and bought them in, paying the purchase price by surrendering the certificates of indebtedness aforesaid, and paying the difference in cash. In return, he obtained 12 several certificates of tax-sale, one as to each lot, bearing date October 15, 1881. Prior to the aforesaid entry in red ink, however, and while the records all showed no assessment or claim of any kind against the lots in question, to-wit, October 2, 1871, Young sold and conveyed them to Hallett Kilbourn, and by various transfers thereafter, all made subsequent to the red-ink entry, they came into the possession and ownership of the plaintiff, January 26, 1881.

In 1875, while the title to the lots was in one James M. Latta, a sale of them was attempted to satisfy the delinquent taxes assessed against them as aforesaid. Latta thereupon filed his bill in equity against the District of Columbia and John F. Cook, collector, to enjoin such sale thereof, and a temporary restraining order was granted on the 29th day of July of that year, which still continues in force. Neither Lyon nor the contractor, Birch, was made a party to that bill; and the collector, upon the service of said restraining order, made no entry or memorandum of the same against the lots in question, but by mistake entered the memorandum thereof as applying to the same numbered lots in square 256.

H. E. Davis, for appellant.

H. H. Wells, for appellee.

Mr. Justice LAMAR, after stating the facts as above, delivered the opinion of the court.