Town of Wake Forest v. Holding

*427 Clarkson, J. The court below on tbe admitted facts, found as a matter of law: “That the failure on the part of the town of Wake Forest to give the notice and hold the hearing required by sections 2712 and 2713, of the Code of 1931, rendered null and void the said attempted assessments, and no lien upon the lands of T. E. Holding for the payment thereof attached to the lands of T. E. Holding.” We think, under the facts and circumstances of this case, there was error in the holding of the court below. Code of 1931 (Michie), sec. 2712, reads as follows: “Immediately after such assessment roll has been completed, the governing body shall cause it to be deposited in the office of the clerk of the. municipality for inspection by parties interested, and shall cause to be published, a notice of the completion of the assessment roll, setting forth a description in general terms of the local improvement, and the time fixed for the meeting of the governing body for the hearing of allegations and objections in respect to the special assessment, such meeting not to be earlier then ten days from the first publication or posting of said notice. Any number of assessment rolls may be included in one notice.” Section 2713, reads: “At the time appointed for that purpose, or at some other time to which it may adjourn, the governing body, or a committee thereof, must hear the allegations and objections of all persons interested, who appear and may make proof in relation thereto. The governing body may thereupon correct such assessment roll, and either confirm the same or may set it aside, and provide for a new assessment. Whenever the governing body shall confirm an assessment for a local improvement, the clerk of the municipality shall enter on the minutes of the governing body the date, hour, and minute of such confirmation, and from the time of such confirmation the assessments embraced in the. assessment roll shall be a lien on the real property against which the same are assessed, superior to all other liens and encumbrances. After the roll is confirmed a copy of the same must be delivered to the tax collector or other officer charged with the duty of collecting taxes.” Section 2714, gives the right to appeal to the Superior Court when the person assessed is dissatisfied “with the amount of the charge.” Notice and an opportunity to be heard is a fundamental principle in our jurisprudence too well settled to need citation of authorities. The record discloses that “T. E. Holding signed the petition requesting the local improvements and paid two of the assessments, levied to wit, assessments for 1925 and 1926.” He signed the petition and had notice that the improvement was to be made under the statute; the assessment roll when completed “the governing body shall cause it to be deposited in the office of the clerk of the municipality for inspection by parties in *428 terested.” Tbe statute gave bim notice that the assessment roll was filed and he could inspect it. It is further in evidence, from the record, that for nine years and during his lifetime, he made no protest as to the amount of the assessments. The defendant administrator of the estate, acting in a fiduciary capacity, attacks the assessments, and in this we see no criticism. T. E. Holding, by signing the petition, had notice of the local improvement being made, stood by and saw it going on under his request and made no protest. He received the benefits. It is contended that he had no notice or hearing on the amount the plaintiff governing body assessed against his property. It is presumed that the assessment roll was filed in the office of the clerk of the municipality for inspection and the statute gave him notice that it was there and the amount assessed. There were 10 assessments of equal amount running from 1 July, 1925. He paid the assessments of 1925 and 1926. Under the facts and circumstances of this case, the proceeding as to him, was not void, but voidable and by his acts and conduct, and in making the payments, he ratified the assessment. In Charlotte v. Alexander, 173 N. C., 515 (519), it is said: “There is no valid reason why citizens who wish' to have their property improved by street paving may not expressly waive the charter restrictions and contract with the city to pay the actual cost. There is nothing against public policy in such agreement. On the contrary, it conduces to the general improvement of the municipality. When such contracts are entered into with full knowledge by the property owner, the law will not permit him to repudiate it after the work is done and he has received the benefits. This principle is approved by numerous authorities.” In the Matter of Assessment Against R. R., 196 N. C., 756; Carpenter v. Maiden, 204 N. C., 114. T. E. Holding could expressly waive the provisions of the statute if he had any objection as to the amount of the assessment, and ratify same by acts and conduct as was done in this case. In Sugg v. Credit Corporation, 196 N. C., 97 (99), speaking to the subject: “The doctrine of equitable estoppel is based on an application of the golden rule to the everyday affairs of men. It requires that one should do unto others as, in equity and good conscience, he would have them do unto him, if their positions were reversed. Boddie v. Bond, 154 N. C., 359, 70 S. E., 824; 10 R. C. L., 688, etc.” For the reasons given, the judgment of the court below is Reversed.