Gans v. City of Philadelphia , 1883 Pa. LEXIS 18 ( 1883 )

Mr. Justice Trunkey

delivered the opinion of the court, April 16th 1883.

The jury appointed to assess the damages for the opening pf a street in the city of Philadelphia, after having determined the amount of said damages and to whom they shall be paid, “shall determine what amount of the damages, if any, shall be paid by the city of Philadelphia, and what amount, if any, shall be paid by the property owners benefited.” After confirmation of the award by the court the “ said city shall pay to the respective owners of the property damaged, or their legal representatives, the damages so assessed for said opening.” And the solicitor of the city shall notify each owner benefited of the amount assessed against his property, and have delivered to him a bill for the sum so assessed, and if the same is not paid within thirty days after delivery of the bill, said solicitor shall “ file a claim in the proper court for the amount thereof against said property, which claim shall be a lien against the premises assessed, and shall be collected in the same manner as municipal claims are now by law collected:” Act April 1st 1864, P.L. 206.

All owners of real estate in said city, when the same has been surveyed and entered upon the plans, are required to ■return their deeds and title papers to the proper office, that they may be registered, and u no property so returned shall be subject to sale, for taxes or other municipal claims thereafter to accrue, as a lien of record thereon, except in the name of the owner as returned, and after recovery by suit, and service of the writ on him made ás in case of a summons:” Act March 29th 1867, P.L. 600.

This claim was filed in August, 1876, against “ Unknown owner or reputed owner, or whoever may be owner.” In January, 1881, it was suggested that Salomon G-ans was owner of the premises, and the writ was served upon him. At the time of opening the street and before, the names of the owners of the property were duly registered. The averment in the claim that “ said owner or reputed owner had notice as required by law,” certainly relates to the unknown owner against whom the claim was filed, and not to the registered owners.

One of the objects of the statutes is to prevent the filing of a lien and the accumulation of costs thereon, until thirty days after actual notice to the owner. The assessment of damages may be confirmed upon such notice to the property owners as the court may direct: but the statute .prescribes what notice the owner shall have before the filing of a lien against his property. Notice to the owner being a prexquisite, the claim should be filed against the property in the name of the person upon whom the notice was served. The law requires the return and registry of the owners of every lot of ground upon the plans of the city, and if so registered the lot shall not be sold for taxes or other municipal claims, except in the name of the owner as returned. “Although the proceeding is in rem, it is contemplated that the owner’s name shall appear in the claim and proceedings thereon.

In Wistar v. City of Philadelphia, 86 Pa. St. 215, it did not appear, nor was it alleged that the names of the owners had been returned and registered, and therefore the ruling in that case has no application to this. Nor do decisions apply which were made before the enactments relating to registry. The claim for an assessment for benefits resulting from the opening of a street differs in some respects from other municipal claims, yet much of what Avas said by Sterrett, J., in Simons v. Kern, 92 Pa. St. 455, is pertinent to the pending question. There, it was held that a sheriff’s sale in violation of the registry law is void. That law enables every interested person to ascertain the name of the OAvner of a lot of ground, Avho can claim security under its provisions. When it plainly appears that a claim has been filed in violation of that law, and of the Act of April 1st, 1864, the city cannot recover.

The said Act of 1864 relates to the opening of streets, and repeals the inconsistent provisions of the Act of April 21st 1858, P. L. 386, relating to the opening, Avidening, and vacating streets. Its Avords include opening only.

Judgment reversed, and now judgment is rendered for the defendant (plaintiff in error) on the demurrer.