City of Statesville v. Jenkins ( 1930 )

ClaeicsoN, J.

The questions involved in this controversy:

1. Does the 10-year statute of limitations bar the city of Statesville from collecting street assessments, or installments thereof, more than 10 years past due? We think not.

2. Do the provisions of chapter 331, subsection b of section 1, apply to this case, in view of the failure to give a reasonable time to bring an action before said act became effective? We think not.

3. Is the liability of a property owner for street improvement special assessments levied by the city of Statesville, governed by general statutory liability or the provisions of the charter of the city of Statesville providing that such assessments shall be and remain in full force and effect until fully paid? We think by the charter of the city of Statesville.

Under the first question involved, we find that the pertinent provisions of the charter of the city of Statesville, Private Laws of 1911, chapter 243, sec. 45, relative to paving assessments, is as follows: “That the amount of the charges made against the landowners and assessed on the respective lots as hereinbefore provided for shall be and constitute from the commencement of the work for which they are charged and assessed, liens on the respective lots upon which they are charged and assessed; that the said amounts shall be placed in the hands of the tax collector for collection, and any property owner shall have the right to pay the charges made as hereinbefore prescribed in ten equal annual installments from and after the commencement of such work, with interest thereon at six per cent per annum from the date of such commencement, in which case the amounts due shall be and remain a lien on the lot or lots against which they are charged and assessed until fully paid,” etc.

In the law under which the assessment was made, we find this clear language "in which case the amounts due shall be and remain .a lien on the lot or lots against which they are charged and assessed until fully paid.”

An assessment made upon adjoining land for a street improvement by a town is a charge upon the land constituting a lien superior to all others, C. S., 2713, and not enforceable against the personalty or other lands of the owner, and when the owner of land has been thus assessed payable in installments, C. S., 2716, and he subsequently dies, it is not a debt of the deceased payable by his personal representative, but a charge against the land itself. The provisions of C. S., 93, as to the order of payment of debts of the deceased has no application. Carawan v. Barnett, 197 N. C., p. 511.

The rights of 'the plaintiff are governed by the statute which makes the assessment. The statute gives a lien in rem, the lot or lots against which they are charged and assessed until fully paid. In the present case, it is conceded that the assessment has not been paid. The case of Morganton v. Avery, 179 N. C., 551, is distinguishable from this case.

As to the second question involved: We do not think the provisions of ch. 331, Public Laws 1929, subsec. b of sec. 1, applicable. “Where the bar of the statute is not complete a change in the statute may extend or shorten the time, but in the latter case a reasonable time must be given for the claimant to enforce his right.” McIntosh N. C. Practice and Procedure, p. 105. In the note are cited cases as to what is a reasonable time.

In Strickland v. Draughan, 91 N. C., at p. 104, it is said, quoting numerous authorities: “In Terry v. Anderson, 95 U. S. Rep., 628, Qhief Justice Wcdte, speaking for the Court, said: ‘This Court has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of the action before the bar takes effect.’ . . . He further says in the same opinion, that parties have no more vested interest in a particular limitation which has been fixed, than they have in the form of the action to be commenced, and as to the forms of action or modes of remedy, it is well settled that the Legislature may change them at its discretion, provided adequate means of enforcing the right remains. Strictly, the principle he announced applies only to the statutes of limitation.” Matthews v. Peterson, 150 N. C., at p. 133; Graves v. Howard, 159 N. C., 594; Fisher v. Ballard, 164 N. C., 329; Barnhardt v. Morrison, 178 N. C., at p. 568-9; see Humphrey v. Stephens, 191 N. C., 101; Williams v. Motor Lines, 195 N. C., 682. The statute we are considering fixed no time for the commencement of the action, but barred all assessments ten years from the default in the payment of any installment. Ashley v. Brown, 198 N. C., 369.

In Dunn v. Jones, 195 N. C., at p. 356, it is said: “No person can claim a vested right in any particular mode of procedure for the enforcement of defense of his rights. Where a new statute deals with procedure only, prima facie it applies to all actions — those which have accrued or are pending, and future actions.’ Stacy, C. J., in Martin v. Vanlaningham, 189 N. C., 656.” Gillespie v. Allison, 115 N. C., 542.

The statute under consideration does not enlarge, but restricts, and no reasonable time is given in which to bring the action. We think the law quoted is controlling.

As to the third question involved: It is well settled, citing numerous authorities, in Felmet v. Commissioners, 186 N. C., at p. 252: “A local statute enacted for a particular municipality is intended to be exceptional and for the benefit of such municipality, and is not repealed by the enactment of a subsequent general law.” Asheville v. Herbert, 190 N. C., at p. 136; Monteith v. Commissioners of Jackson, 195 N. C., 74-5; Goode v. Brenizer, 198 N. C., 217.

For the reasons given, the judgment below is

Reversed.