Chatterson v. City of Louisville

• Decision Date: 23 November 1911
• Citation: 140 S.W. 647,145 Ky. 485
• Parties: CHATTERSON et al. v. CITY OF LOUISVILLE.
• Court: Kentucky Court of Appeals

140 S.W. 647

145 Ky. 485

CHATTERSON et al. v. CITY OF LOUISVILLE.

Court of Appeals of Kentucky.

November 23, 1911

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by the City of Louisville against I. C. Chatterson and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Chatterson & Blitz, for appellants.

Joseph S. Lawton and Clayton B. Blakey, for appellee.

HOBSON C.J.

The city of Louisville brought this suit against I. C. Chatterson and others to enforce its lien on certain real estate owned by them for taxes for the years 1904 and 1905. The suit was brought on August 10, 1910. The defendants pleaded limitation. The court sustained the plea as to the taxes of 1904, but gave judgment in favor of the city on the taxes for 1905. The defendants appeal.

By section 2515, Kentucky Statutes (Russell's St. § 224) "an action upon a liability created by statute, when no other time is fixed by the statute creating the liability," must be commenced within five years next after the cause of action accrued. The taxes are a liability created by statute. The taxes for 1905, though levied as of September 1, 1904, were not distrainable until August 20 1905.

It was held in Louisville v. Johnson, 95 Ky. 254, 24 S.W 875, 15 Ky. Law Rep. 615, that the city's cause of action on the taxes did not accrue until August 20th. The present statutes are practically the same as those then before the court, and the Legislature, having re-enacted the statute must be presumed to have re-enacted it in view of the court's construction of it. The suit, having been brought on August 10th, or within five years after the cause of action accrued, was in time.

In addition to pleading the five-year statute, the defendants pleaded in the second paragraph of their answer "that the title to the property described in the petition *** was alienated from the persons named in the tax bills *** more than five years before the institution of this action." Section 4021, Kentucky Statutes (Russell's St. § 5913), is as follows: "The commonwealth, and each county, incorporated city, town or taxing district, shall have a lien on the property assessed for the taxes due them respectively (for five years) which shall not be defeated by gift, devise, sale, alienation, or any means whatever, unless the gift, devise, sale or alienation shall have been made for more than five years before the institution of proceedings to enforce the lien, and nothing shall be exempt from levy and sale for taxes and cost incident to the sale. When any lands or improvements shall not be assessed in any one year, it may be assessed retrospectively in the manner provided for by law, for that year, at any time not later than five years thereafter; but the lien thereby accruing shall not prejudice the rights of purchasers acquired in the meantime."

It is insisted that the second...