#### George Cemansky v. Henry A. Fitch, Appellant.

Special Assessments: when lusss ON abutting PROPERTY. A I special assessment for tlie construction of a sidewalk becomes a lien on abutting property upon filing with the county auditor a copy of the record of the city council directing the con- ' struction of the walk, as provided in Code, section 816.

*187Covenant Against Incumbrances: what includes. A covenant 3 in a deed against incumbrances is a covenant *in priesenti*and does not include a charge ior street improvements, the statutory lien for which has not attached, nor is it covered by a covenant to defend against “lawful claims” which are not at the date of the deed established liens. .

*Appeal from Woodbury District Court.*— Hon. William Hutchinson, Judge.

Saturday, October 10, 1903.

Action for damages resulting from an alleged breach of the covenants contained in a warranty deed. From judgment against him, the defendant *appeals.*

Reversed.

*Hubbard*cfe *Burgess*for appellant.

*Shull c& Farnsworth*for appellee.

Ladd, J.

The defendant was owner of lot nine of block seven in Sioux City, and on the 22d day of January, 1900, conveyed it to th'e plaintiff by warranty deed, covenanting perfect title, “free and clear of all liens and incum-brances,” and “to warrant and defend the title to said premises against the lawful claims of all persons whomsoever.” Prior thereto, in September, 1899, the city council had ordered the construction of a cement sidewalk in front of the lot, and, as the owner did not build it, had caused it to be constructed in November of that year. In August following, the council assessed the cost against the lot, and a transcript of the entire proceedings, duly certified by the city clerk, was filed with the county auditor. Such cost was duly entered on the books of the auditor and treasurer as a tax against the premises. The defendant having refused to satisfy the same, the plaintiff paid the amount assessed,' being $98.38, including interest and penalties. The defendant demurred, to a petition stating *188these facts. The court held that they established a breach of the covenants contained in the deed, and rendered judgment accordingly.

i. special assessm cuts* when uens ¿n abutting’ property. It is to be noted that the sidewalk had been constructed about two months before the execution of the deed, but that the certified transcript of the proceedings was not filed until about seven months after-wards. The regularity of the proceedings is not questioned, and the sole issue to be determined is whether liability for the cost of the improvement attached to the lot prior to the execution of the deed.

Special assessments do not become liens save as so made by statutory authority. *Eagle Mfg. Co. v. City of Davenport,*101 Iowa, 493. Formerly they became such when the work began. To obviate the difficulty of determining by parol evidence precisely when this happened, and in order to indicate the attachment by an appropriate record, section 816 of the Code was enacted, pointing out how and when the cost of such an improvement might be made a lien on the abutting property: “After a contract has been made by any city for the‘making or reconstruction of any street improvement or sewer, the clerk shall file with the auditor of the county, or each of the counties, i-n which said city is situated, a written or printed copy of the notice of the resolution provided for, with a true copy of the proof of publication thereof, together with a certificate of the clerk that an ordinance or resolution has been adopted directing the making or reconstruction of said street improvement or sewer. Thereupon al> special taxes for the cost thereof, or any part of said cost, which are to be assessed or levied against real property, or any railway or street railway, together with *all*interest and penalties on all of said assessments, shall become and remain a lien on such property from the date of the filing of said papers with the county auditor until paid, and shall have precedence over all other liens except ordinary taxes, which shall *189not be divested by any judicial sale; but such liens for street improvements in case of abutting property shall not cover to exceed one hundred and fifty feet in depth from the abutting line. .Any such assessment against a railway or street railway shall be a first and paramount lien upon track thereof within the limits of the city.”

2. covenant ?fSbrÍ¿ras: ■what included Doubtless, if the improvement were never actually-made the proposed lien would fail, but if, after being contracted for, the work is completed, it will attach, and relate to the date of filing with the county auditor a copy of the notice of the resolution of the city council, with a true copy of the proof of publication of notice thereof, and a certificate of the clerk that a resolution or ordinance was adopted directing the improvement. In other words, upon proof of record in the auditors’s office that everything preliminary to the actual construction of a sidewalk .has been done in conformity to law, the lien for the costs immediately attaches, and it does not attach until then, even though the walk may have been built long before. Why? Because the statute so provides, and it is conclusive. By fixing the time, it impliedly declares the lien does not attach previously. The counsel did not assess the cost of this walk until August 17, 1900, and the certificates were not filed until September 22d following. Nothing had been done before the execution of the deed to make the claim against, or a lien or incumbrance upon, the lot, and the terms of the statute exclude the idea that the lien could then have existed. *Cadmus v.*Fagan, 47 N J. Err. & App. 549 (4 Atl. Rep. 325); *Eagle Mfg. Co.*v. *City of Davenport, supra.*Surely prior to assessment by the city council it was not a tax against the land, and, if not, then it could not amount to an incumbrance thereon, *Ingalls v.*Cooke, 21 Iowa, 560. But the statute fixes the filing of proper proof with auditor, rather than making of the assessment, as the time the lien shall attach, and prior thereto *190it did not constitute an incumbrance such as contemplated by the covenants contained in the deed. *Tull v.*Royston, 30 Kan. 617 (2 Pac. Rep. 866); *Eagle Mfg. Co. v. City of Davenport, supra.*See *Harper v. Dowdney,*113 N. Y. 644 (21 N. E. Rep. 63); 8 Am. & Eng. Ency. of Law, 127.

But appellee argues that the right to have the cost of the sidewalk established as a lien was an incumbrance, or, at least, a “lawful claim,’’against the property. An in-cumbrance is “any right to, or interest in, land which may subsist in third persons to the diminution in value of the land, though consistent with the passing.of the fee by a deed of conveyance.” But a mere possibility of establishing a right to, or interest in, land is not within this definition. Ihe covenant against liens and incumbrances is a covenant *in prmenti,*and does not relate to those which may thereafter attach. If broken at all, it is broken when the conveyance is executed. *Ingalls v.*Cooke, 21 Iowa, 560; *Barlow v. Bank,*63 N. Y. 399 (20 Am. Rep. 547). That an assessment may be levied and an incumbrance subsequently created by following the statutory provisions does not amount to a present incumbrance. *Cadmus v.*Fagan, *supra.*

Appellee further argues that the cost was at least a claim against the property, and therefore within “the covenant to warrant and defend the title to the said premises against the lawful claims of all persons whomsoever.” But the “lawful claims” contemplated are those to the title conveyed, and not to mere charges, which may or may not be established as liens thereon. Jones on Real Property, sections 892, 893; *Meservey v. Snell,*94 Iowa, 222; *Leddy v. Enos,*6 Wash. 247 (33 Pac. Rep. 508, 34 Pac. Rep. 665); *Zabriskie v. Baudendistel,*(N. J. Ch.) 20 Atl. Rep. 163.

One of the objects of the Legislature in. defining precisely when the lien for street improvements attach to the abutting property must have been the determination of *191the liability therefor as between grantor and grantee in such a deed, and we perceive no reason for not giving the statute full effect. — ReveRSed.