#### JOHN M. COBLE v. J. T. DICK.

(Filed 21 December, 1927.)

Deeds and Conveyances — AVarxanty—Encumbrances—Municipal Corporations — Street Improvements — Liens—Statutes—Mortgages—Actions.

Assessments made upon the property of the owner for street and sidewalk improvements by a town, and in all respects under the authority conferred on the municipality by statute, extending in partial payments over a designated period of time, are to be regarded in the nature of a statutory mortgage when due and payable, and constitute liens on the property within the warranty clause against encumbrances contained in a deed, and recoverable in the grantee’s action against the grantor to the extent he has been required to pay them. C. S., 2713, 2716, 2717.

Appeal by defendant from Barnhill, J., at September Term, 1927, of Alamance.

Affirmed.

The following is agreed statement of facts:

“1. That the plaintiff, Jobn M. Coble, purcbased from the defendant, J. T. Dick, a building lot in the town of Mebane, N. C., on 31 March, 1924, and the defendant executed to the said John M. Coble deed for a consideration, said deed containing full covenants and warranties against all encumbrances whatsoever.

“2. That prior to the execution of the aforesaid deed street and sidewalk assessments had been legally and regularly levied against the property conveyed in said deed; that annual installments for a ten-year period had been authorized by the city of Mebane; that said installments were $23.46 each, plus interest computed annually.

“3. That the installment of 15 January, 1924, was paid by the defendant, and since that time the plaintiff has paid the sum of $67.34, and this action is brought for the recovery of the sum of $67.34, the amount plaintiff has already paid on said assessment; that plaintiff’s cause of action is based upon the warranties contained in said deed against all encumbrances.

“4. That the assessment-roll went into effect on 15 July, 1922, and that all annual installments accruing prior to the date of said conveyance had been paid by the defendant, J. T. Dick.

“5. That the assessment was made by the town of Mebane, N. C., under the act of the Legislature of North Carolina, known as local improvement statutes, and under municipal finance acts as set forth in chapter 56 of the Consolidated Statutes of North Carolina, and was regularly and properly made.

“6. It is agreed that the entire question is whether such assessment is an encumbrance as contemplated or included in the warranty.”

*733Tbe judgment, in part, is as follows: “Tbe court being of tbe opinion tbat tbe street assessment lien set out in said agreed statement of facts constitutes an encumbrance witbin tbe meaning of tbe warranty clause in said deed from tbe defendant to tbe plaintiff: it is ordered, considered and adjudged tbat tbe plaintiff recover of the defendant, J. T. Dick, tbe sum of $67.34, together with interest,” etc.

John J. Henderson for plaintiff.

Thomas C. Carter for defendant.

Olakksou, J.

C. S., 2713, in part, is as follows: “Whenever tbe governing body shall confirm an assessment for a local improvement, tbe clerk of tbe municipality shall enter on tbe minutes of tbe governing-body tbe date, hour and minute of such confirmation, and from the time of such confirmation the assessments embraced in the assessment roll shall be a lien on the read property against which the same are assessed, superior to all other liens and encumbrances.” (Italics ours.)

C. S., 2716, provides tbat payment of assessments can be in cash or by installments.

C. S., 2717, provides bow tbe payment can be enforced.

In Kinston v. R. R., 183 N. C., p. 14, it is termed a “statutory mortgage.” Bank v. Watson, 187 N. C., p. 107.

In Hahn v. Fletcher, 189 N. C., at p. 732, it is said: “From tbe facts found tbe covenant in plaintiff’s deed was ‘against encumbrances.’ When defendant delivered tbe deed to plaintiff, this covenant was broken with tbe street assessment — a lien or a statutory mortgage on tbe land. Plaintiff could have at once sued for tbe breach.” In Farrow v. Ins. Co., 192 N. C., p. 148, this encumbrance was held not such as to defeat insurance policy under sole ownership clause. It will be noted in tbe Hahn case, supra, tbe action was tried out on tbe theory tbat tbe justice of tbe peace court bad no jurisdiction. It was so .held — technical but legal. See Comrs. v. Sparks, 179 N. C., p. 581.

In tbe present action tbe agreed statement of fact sets forth, “It is agreed tbat tbe entire question is whether such assessment is an encumbrance as contemplated or included in tbe warranty.” We are not disposed ex mero motu to dismiss tbe action for want of jurisdiction.

Upon tbe facts agreed upon in this case tbe street assessment lien is an encumbrance witbin tbe meaning of tbe warranty clause in tbe deed from defendant to plaintiff. Tbe judgment of tbe court below is

Affirmed.