Duncan v. Louisville, &C.
| Decision Date | 16 October 1877 |
| Citation | 76 Ky. 378 |
| Court | Kentucky Court of Appeals |
| Parties | Duncan v. Louisville, &c., and Duncan v. Griswold's Ex'x. |
April 17, 1872, the appellant executed to W. R. Thompson two notes for $1,750 each, payable, one in twelve months and the other in two years, bearing six per cent interest till maturity, and after that ten per cent until paid, and both negotiable and payable at the Western Financial Corporation, an incorporated bank in this state. It was stated on the face of each note that it was given in part payment for and secured by lien on real estate that day conveyed by Thompson and wife to Duncan.
The note due in one year was assigned by Thompson to Griswold, and was by him discounted to the Bank of Maysville; the other was discounted by Thompson to the Citizens Bank. Both were protested for non-payment; and Griswold having died, his executrix took up the note discounted by him to the Bank of Maysville, and brought suit on it in the Louisville Chancery Court to recover judgment against Duncan and Thompson, and to enforce the vendor's lien retained in the deed from Thompson to Duncan. To that suit the Citizens Bank was made a defendant, and set up in its answer and cross-petition the note held by it, and sought the enforcement of the vendor's lien and a judgment against Duncan and Thompson.
Duncan answered the original and cross-petition, and denied that either of the banks had legal right or authority to discount the notes, or that either of said notes had, by being so discounted, been placed upon the footing of a foreign bill of exchange. He then went on to allege that Thompson had conveyed the lots for which the notes were given by deed containing a warranty of title; that he (Thompson) had purchased the lots of John T. Morris, and had executed to Morris a note for $1,325 for a part of the purchase money, for which a lien was retained in the deed from Morris to him; that that note was assigned by Morris to Hunt; and that Hunt had brought suit on it since the conveyance to him (Duncan), and that suit was still pending and the lien still existed. He also alleged that at the time of his conveyance from Thompson, and at the time his answer was filed, there was a lien asserted against the property for about $650 for street improvements; that the state and city taxes against the property were unpaid, and the state and city held a lien on the property for the taxes; and that Thompson was insolvent. He prayed that the note to Morris, the claim for street improvements, and the taxes for 1871 might be credited on the notes.
The suit by Griswold's executrix was commenced in May, 1873.
In November of that year the city of Louisville brought a suit in equity against Thompson alone to recover the taxes on the property for the years 1871, 1872, and 1873. By an amended petition the city made Hunt, Duncan, the Citizens Bank, the Bank of Maysville, and Nunz, who had purchased sixty-three feet of the lot conveyed by Thompson to Duncan under a judgment in favor of Hunt rendered on the note held by him as assignee of Thompson, defendants.
The city again amended its petition and made the executrix of Griswold a defendant, and she and the Citizens Bank answered and set up the notes held by them respectively, and, making their answers cross-petitions against Duncan and Thompson, prayed judgment as in the former suit.
Duncan answered the petition of the city, and stated that "he had no knowledge as to the question involved, except that he assents to and asks for the taxation to be levied upon the whole one hundred feet of ground" conveyed to him by Thompson," and he assents to the city receiving her fair rate of taxes pro rata upon each foot of the one hundred feet of ground."
In answer to the cross-petition of the Citizens Bank, he again set up the note and lien held by Hunt as assignee of Morris, and averred that sixty-three feet out of the one hundred feet had been sold to satisfy that lien, and that the taxes for 1871 and 1872 had not been paid; again reiterated that a lien was asserted for $650 for street improvements, but that no decision had been rendered as to that matter in the suit in which it was asserted, and attempted to plead all of said matters as a set-off against the notes held by the Citizens Bank and Griswold's executrix.
The court, on final hearing, rendered a personal judgment against Duncan and Thompson, in favor of the Citizens Bank and Griswold's executrix, and also a judgment to sell the remaining thirty-seven feet of ground not sold under Hunt's judgment, to satisfy, first, the claim of the city for taxes, and secondly, the debts adjudged to the Citizens Bank and Griswold's executrix.
From that judgment Duncan prosecutes these appeals.
The appeal against the city may be disposed of in a few words. Duncan's answer was a virtual consent to the decree in favor of the city, and having consented to it he can not reverse it. It is true the court did not render the judgment he desired, but his answer conceded the right of the city to a judgment for the unpaid taxes, and the judgment rendered being correct on the facts presented, can not be reversed at his instance.
The appeal against the bank and Griswold's executrix presents several questions.
The first and most important is, whether Duncan had a right to set off the amount of Hunt's judgment, the taxes for 1871 and 1872, and the asserted claim for street improvements.
In regard to the latter item, it...
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