Elliott & Horne v. Chambers Land Co.

JAMES, J.

Plaintiff appeals from a judgment denying any relief, in its suit to foreclose certain liens alleged to have been acquired through street assessment proceedings taken under the Vrooman Act (Stats. 1885, p. 147). Several assessments, covering different parcels of land owned by the defendant corporation, were alleged to have been made, each of which involved an amount in excess of $25. The trial court sustained a demurrer to the complaint upon the

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sole ground, as appears from the argument of counsel, that the suit had not been commenced within two years after the recording of the assessment, diagram, and warrant. (Henning’s Gen. Laws 1920, see. 9.) The assessment proceedings provided for the issuance of bonds on assessments exceeding $25 agreeable to the provisions of the Bond Act of 1893 (Leering’s Gen. Laws 1915, p. 1761, Act No. 393-2). The Vrooman Act provides that, from the date of the recording of the warrant, assessment, and diagram., a lien against the property assessed arises and continues in force for a period of two years. Where bonds are to be issued under the Bond Act, the latter provides, first, that “in case the amount of the unpaid assessment or reassessment upon any lot or parcel of land shall be less than $25, then the same shall be collected as is provided in said Street Act.” For amounts in excess of $25 it is provided that, after the lapse of thirty-five days, bonds shall be issued, the principal and interest of which shall be payable in installments covering a term of years (in this case six). It is then provided that, in case of a bondable assessment, if the owner shall, before the bond is issued, make affidavit of his ownership and furnish certificate of title in proof thereof, and request that no bond issue, then no such bond shall issue, and that the holder of the warrant or his assigns “shall retain his right for enforcing collection of said assessment or reassessment

as if said lot or parcel of la/nd had not been so liéted by the street superintendent.”

The list last referred to is the list required to be made by the street superintendent and delivered to- the treasurer, of assessments amounting to more than $25.

The assessment, warrant, and diagram, as they affected the property of the defendant, were recorded in the office of the street superintendent of the municipality of Manhattan Beach on the twenty-fourth day of January, 1917. On the thirtieth day thereafter, to wit, February 23, 1917, the defendant brought an action against the city of Manhattan Beach and other interested defendants, the purpose of the suit being to have declared void all of the proceedings upon which the assessment was based. On the same day the superior court issued a restraining order to prevent the city treasurer of Manhattan Beach from issuing the bonds, and this injunctive restraint was continued in force until May 8,