Barth v. Ward

Hatch, J.: -

- The defendants filed exceptions to the decision of the court, which requires us to review the facts in this case, and after careful consideration of the questions presented, we are of the opinion that certain material facts found by the court as a basis for its conclusions of law are not supported by the evidence. ■ It is alleged in the complaint and found as a fact by the court that the Supreme Court of New Jersey, in setting aside the assessment against the property purchased by the plaintiff from defendants’ testator, not only decided that the act of 1892 (Chap. 81), under and pursuant to which the assessments, were made, was unconstitutional, but that said assess^inents should have been levied under the provisions of chapter 59 of the Laws of 1818-of the State of New Jersey, entitled “An act to provide for the assessment and payment of the costs and expenses incurred in constructing sewers and making other improvements in townships and villages; ” and the supplement thereto of 1880 (Chap. 205).

The only evidence as to these facts is found in the exemplified copy of the record of the proceedings in which the assessment was set aside, and this evidence not only fails to establish ■ the facts so •found, but conclusively disproves all except the fact that the assessment was set aside on the ground that the act authorizing it was unconstitutional and void. Ho mention is made of the other matters found as facts by the court below. The facts so found were material to the issue made by the pleadings, the plaintiff having alleged that the grantor did “ agree with this plaintiff that if at any time thereafter the said assessment should be restored or said property * * * be reassessed for said improvement, and if the plaintiff was compelled to pay the same, he, the said George Bliss would repay the amount so paid by this plaintiff.” The defendants denied the same.

Another finding of the court upon, the subject is still more objectionable. It is stated and found as a fact that these defendants’ testator, at the time of his demand for the return of the money deposited by him with the plaintiff, “ did then and there agree with this plaintiff that if at any time thereafter the said assessment should be restored (or said property conveyed by him to the plaintiff would be reassessed for said improvement) and if the plaintiff was compelled to pay the same, he, the said George Bliss, would repay the amount so paid by this plaintiff.” This was also averred in the complaint and denied in the answer. This finding is vital to the plaintiff’s right to recover, and, if unsupported by the evidence, the judgment must be , reversed. The only evidence of the agreement between the parties is a written contract, from which it appears that the defendants made no such agreement. The agreement provides, “ That in case at any future time an appeal shall be duly taken from said adjudication of the Supreme Court of Hew Jersey, and that on said appeal the said adjudication shall be reversed, and the said assessment shall be finally adjudged to be a lien upon said property, so that said Barth shall become liable'to pay the same to relieve the property from such lien, then, and in such case, the said Bliss shall on demand pay to said Barth the amount he is so compelled to pay.” This is a very different agreement, in legal effect, from that found by the court and its effect is obvious, for under the agreement found an undoubted liability would be imposed upon the defendants, while under that proved, their liability depends upon whether or not the facts show a breach of the agreement actually made and proved. The trial court, in accordance with its finding, as to the agreement, further found and decided that the assessment of $1,526.25, afterwards levied upon the property and paid by the plaintiff, was a reassessment for the identical work and improvement for which the first assessment had been made and levied thereon. It is thus seen that a recovery was had upon the theory that the money paid by the plaintiff was for a restoration or reassessment of the original tax, and this conclusion is based upon 'the authority of Cadmus v. Fagan (47. N. J. L. 549). With this result we cannot agree. It appears that the assessment which was considered by the court in that case was set aside for some reason which does not clearly appear, but it is made manifest that the decision is not based upon the invalidity of the law under which the assessment was made, nor is the validity of the law questioned, for the court by the same order by which the assessment-was vacated and set aside, appointed commissioners to reassess the tax for the improvement. The reassessment was made and confirmed, and it was held that such assessment related back to the date of the confirmation of the original assessment. It, therefore, appears that the facts in the case at bar do not bring it within the authority of that case. Here; not only the original assessment, but all the proceedings leading:up to it were set aside, made void and adjudged to be “ for nothing holden.” Ho continuance of such proceedings was possible.,, because the court held that “ the act of the Legislature, under and by virtue of which said proceedings were instituted, the work done, and said assessments made, is unconstitutional and void.” Hó lien was ever created by the proceeding.' It was null ah mitio, and it follows that there was no breach of the grantor’s covenant against incumbrances. Hor was there shown any breach of the contract made by the grantor with the plaintiff. There is no proof of an agrees ment on his part to pay any new assessment that might be made. He contended that the apparent lien of the original assessment was no incumbrance, because of the unconstitutionality of the law under which the proceeding was taken. The court sustained this view and adjudged the assessment void, thus removing the cloud on the title. The grantor intended' to protect the title against the original assessment and the reversal of -that adjudication if appealed from, and he agreed that if the original assessment was “ finally adjudged to be a lien upon said property,” he would pay the same. Ho such thing was ever done ; no appeal was taken from the - decree. The assessment which the plaintiff paid was a new assessment, made and levied under a new proceeding 'commenced de novo under another statute, the lien of which only attaches from the date of its confirmation, long after the date of the conveyance. Ro liability is created by the covenant nor by the agreement proved.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Yah Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.