Jones v. City of Asheville

190 S.E.2d 643, 15 N.C. App. 714, 1972 N.C. App. LEXIS 2011

• Court: Court of Appeals of North Carolina
• Decided: August 23, 1972
• Docket: No. 7228DC553
• Status: Published

Opinion

HEDRICK, Judge.

The questions presented upon this appeal are (1) was a valid lien for street paving created on the property owned by Dent Realty Company and (2) are plaintiffs, successors in title to a portion of said property, estopped to deny the validity of the lien?

The trial judge’s conclusion that a valid lien was never created because the defendant failed to comply with the provisions of G.S. 160-85 et seq. fails to consider the proposition that:

“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. . . . In our opinion, it is both good morals and sound law to hold that when a person has accepted the benefits of a contract, not contra bonos mores, he is estopped to question the validity of it.” Charlotte v. Alexander, 173 N.C. 515, 92 S.E. 384 (1917); Insurance Co. v. Charlotte, 213 N.C. 497, 196 S.E. 809 (1938).

The petition (Exhibit A) signed by Dent Realty Company in pertinent part provides:

“We, the undersigned owners of property abutting on Pressley Road do hereby petition the City of Asheville to grade said street, place a stone base course 20 Feet IN Width and apply an approved asphalt top on the street, pursuant to provisions of Chapter 160, Article 9 of the North Carolina General Statutes.

In consideration of the above improvement, we the undersigned do hereby agree to pay to the City of Ashe-ville the sum of One ($1.00) Dollar Per Front Foot for 20 Foot PAVING immediately adjacent to our respective properties.”

By this petition Dent Realty Company, in effect, contracted to pay the City of Asheville to grade and pave that portion of Pressley Road abutting its property; and having accepted the benefits of the street improvements, it would have been estopped to deny the validity of a lien created on its property to pay for the improvements. If the person who owned the property when the assessment was made is estopped from contesting the validity of the assessment, a subsequent purchaser taking with notice of the assessment will be deemed to have taken the property subject to the consequent burden, and cannot question the validity of the assessment. Insurance Co. v. Charlotte, supra.

Thus, in the instant case, since the petition, the consequent grading and paving of Pressley Road, and the acceptance of the benefits of the street improvements created a valid lien against the property owned by Dent Realty Company, then the lien would be good as to all subsequent owners of the property with notice.

Defendant contends notice of the lien was afforded plaintiff by its compliance with G.S. 160-100 which, prior to its repeal by Session Laws 1971, c. 698, s. 2, effective 1 January 1972, in pertinent part provided:

“As an alternative to preparation of a Special Assessment Book, the governing body may in its discretion cause the information required by this section to be recorded or stored on any ledgertype cards or machine cards or similar cards, or on magnetic or other recording tape, or on or in any machine or device or system of machines or devices, designed for and capable of the accurate storage and retrieval of intelligence or information.”

The alternative to the preparation of a special assessment book, as a method of maintaining records, was added to G.S. 160-100 by Chapter 763 of the Session Laws of 1967, which also stated:

“The prior use by any municipality of any method authorized by this act for recording or storing the information required by G.S. 160-100 is hereby in all respects validated.”

The trial judge’s finding “. . . that the City of Asheville did file the card, a copy of which is attached as Exhibit F to the stipulation between the parties, in a card file which the City of Asheville kept and presently maintains in the Office of the Register of Deeds of Buncombe County” is sufficient to support a conclusion that the defendant complied with the provisions of G.S. 160-100, and Exhibit F, thus filed, gave constructive notice to the plaintiffs that the defendant City had and claimed a valid lien on the property in question in the amount of $291.08.

We hold the plaintiffs, like their predecessor in title, Dent Realty Company, are estopped to deny the validity of the lien. The judgment is

Reversed.

Judges Brock and Morris concur.