Howard Savings Institution v. Mayor of Newark , 23 Vroom 1 ( 1889 )

The opinion of the court was delivered by

Beasley, Chief Justice.

The facts before us, in brief, are these, viz.: One Elias Marsh was the owner of a lot in Newark, which, in 1873, was assessed for part of the expense of paving a street; that assessment was unconstitutional, but notwithstanding that the premises were thereunder sold by the comptroller, and the city became the purchaser for a term of fifty years. Afterwards the Howard Savings Institution, becoming the purchasers of the property, filed, under the statute, their bill in chancery against the city of Newark to quiet their title to the premises in question. This bill was answered, the city setting up their claim to the premises by force of the ■assessment and sale above mentioned. In 1880 a decree was .rendered, declaring that the assessment and proceedings were ■unconstitutional, and that the city “has,” in its language, “no estate, interest or right in or encumbrance upon the” tract of land now in question. The commissioners of adjustment, under the authority of the act of March 30th, 1886, have • assessed these premises at a certain amount.

It is now insisted that the original assessment having been •annulled by the Court of Chancery, as above stated, the right ■of the city to a re-assessment has been extinguished, and •that, consequently, the last assessment is not possessed of any legality.

The argument appears to be thus, that the Court of Chan-cery has conclusively declared that the city of Newark had ■“no estate, interest in, or right in or encumbrance upon these premises,” and that such decree is conclusive between the municipality and the owner of this property.

But we think this argument is obviously without force.

‘ At the time of the decree the city had “no estate, interest or right in or encumbrance upon” these premises, and none such is now pretended or sought to be enforced. A right to obtain an encumbrance is a very different thing from an existing lien. What the decree dealt with wa's then present estates • and encumbrances; it declared that none such existed; but it neither did nor could adjudge that none such could be after-wards acquired.

It is insisted in behalf of the plaintiff that, in these chancery proceedings, if the city possessed the right to acquire liens on the property in the future, it was bound, in conformity with the rules of equity practice, to set up such capacity in its .answer. But this is a plain fallacy, for such capacity was not in issue, and was possessed of no quality tending to elucidate or affect what was in issue. The matter to be decided, regarding it in its widest extent, was the existence of any existing estate or encumbrance in or upon the premises, and the question, whether or not the city could, by any course of law, obtain a future lien or estate, was not sub'judice. A statement-in the answer to that effect would have been altogether irrelevant ; it would not have appertained in the remotest degree-to the subject of inquiry, and-could not have been judicially noticed. When the Chancellor declared in his decree that the city had no estate in or encumbrance upon this property, he-did not declare that the city could never in the future acquire such interest; such latter declaration, if made, would have- , been extrajudicial and a mere nullity.

But the claim of the plaintiff must go beyond even this-exorbitant bound. The chancery proceedings were in 1879; the present assessment became an encumbrance upon these premises under the act of 1886. The contention, therefore, must be, not only that the city, in its answer in the chancery suit, was called upon to set out and claim its right to acquire-liens on these lands by virtue of then existing laws, but was-likewise bound to anticipate the acquisition of a possible franchise possessed of such an efficacy by force of legislation-which there is no reason to believe was then in contemplation. If the result in chancery had the effect claimed, it would be-equivalent to a decree declaring that the legislature should not-pass a law providing for the assessment of property in a legal mode as a substitute for a previous assessment that had proved, nugatory. Such a contention is destitute of all legal basis.

' In our opinion, the right of the city to a re-assessment in-neither of the cases exhibited in the certificate of the Circuit-judge has been extinguished.