Hartshorn v. Cleveland

The opinion of the court was delivered by Dixon, J. Under the charter of the city of Rahway (Pamph. L. 1865, p. 499, §§ 83, 84, 85, 86) and its supplements (Pamph. L. 1870, p. 887, § 2; Id. 1875, p. 351, § 1), the city was empowered to pave streets, to ascertain and declare the costs and expenses thereof, and to levy assessments therefor equitably upon the property peculiarly benefited, in proportion to such benefit, which assessments were to constitute liens upon ,the property assessed from the time of making the improvement, and were to draw interest from the date of the declaration of the costs and expenses. Shortly before September 21st, 1878, the city had paved Milton avenue and had ascertained and declared the expenses thereof, and was then proceeding to make an assessment therefor. The assessment subsequently levied covered the premises now under' consideration, which fronted upon the avenue. On September 21st, 1878, the defendants conveyed these premises to the plaintiff for $8,000, with a covenants that they were not encumbered by any encumbrance by which the title of the grantee could be charged in any way whatsoever. On' July 25th, 1888, the assessment, with interest, amounted to $840.64, but the plaintiff then secured the discharge of the encumbrance by paying $269, which the Circuit Court of Essex county has found to have been a fair' and reasonable payment. ' ' On suit brought in that court the plaintiff recovered a' judgment against the defendants for $269, and interest, as damages for breach ‘of said covenant, and the Circuit has' [482] certified the facts to this court for its opinion on the question whether the judgment should stand. . The improvement of the avenue conferred a peculiar benefit upon, the premises in question, and rendered them liable to such an assessment as the legislature, had prescribed. The extent and duration of the lien of such an assessment were matters-for legislative regulation, within the limits, of course, of constitutional power. Cadmus v. Fagan, 18 Vroom 549. The legislature had declared that the lien should attach from the completion of the improvement. That enactment was plainly valid, for at such completion the whole benefit had been, conferred upon the property, and the public nature of the work had given due notice thereof to all persons interested in the matter. The effect of, this legislation was to create and announce the existence of an encumbrance, the amount of which was thereafter to be ascertained. Coss v. Hayes, 16 Vroom 12; affirmed, Id. 565. Consequently, as soon as the defendants made their covenant, it was broken by this encumbrance for a sum not then fixed. The plaintiff therefore was entitled to judgment. The only other question is as to the amount of. damages recoverable for the breach. The general rule is, that, in an action for damages arising from the breach of a covenant against encumbrances, where the plaintiff has removed the encumbrance, he may recover the amount fairly and justly paid by him for the removal of the encumbrance, not exceeding the value of the estate. 1 Sedgw. Dam. (7th ed.) 352; Johnson v. Collins, 116 Mass. 392; Smith v. Carney, 127 Id. 179. The Circuit Court has found as a fact that the payment made by the plaintiff to discharge this encumbrance was fair and reasonable. It seems to follow that judgment was properly rendered for the sum so paid. But the defendants urge that the assessment was invalid, because not appearing to be levied as required by the charter, according to the benefits conferred, and, therefore, did not bind the defendants. If, however, its invalidity be conceded, still, as its sole function was to ascertain the amount of the [483] encumbrance already existing under the provisions of the charter, the only result would be, that the amount of such encumbrance was not thereby legally determined. The right of the city to have the amount determined and to collect it from the property, remained and was secured under, the charter and the general laws of the state, and whether the determination was finally made by the existing assessment or by another to be substituted for it, the lieu would continue from the time fixed by the charter, the completion of the improvement. Cadmus v. Fagan, ubi supra. The avoidance of the assessment would merely cast upon the plaintiff the burden of showing aliunde that the sum paid by him was reasonably necessary to discharge the property from its liability for a just and legal share of the expense of the improvement. According to the case certified, that was proven. The Circuit Court should be advised that the judgment is right.