City of Louisa v. Horton

• Court: United States State Supreme Court (Kentucky)
• Writing for the Court: Judge Richardson
• Citation: 263 Ky. 739
• Decision Date: 07 November 1935
• Parties: City of Louisa v. Horton.

Page 739

263 Ky. 739 City of Louisa
v.
Horton. Court of Appeals of Kentucky. Decided November 7, 1935.

1. Municipal Corporations. — Presumption existed that city council when making assessment for paving improvement observed statute and did not make assessment in excess of 50 per cent. of improved value of lot.

2. Municipal Corporations. — If assessment against lot for street improvement exceeded 50 per cent. of improved value of lot, burden was on lot owner to establish such fact.

3. Payment. — If debtor makes payment where amount is payable in installments, and does not direct application of payment, creditor may appropriate sum paid to whichever installment he desires, unless one of them is not due.

4. Payment. — Generally, where neither debtor nor creditor has applied payment to either debt, court will make application to payment of most precarious or older, if both are due.

5. Limitation of Actions. — Partial payment on obligation made before it is barred by limitation is prima facie acknowledgement that residue is unpaid, and suspends operation of statute between accrual of cause of action and date of payment.

6. Limitation of Actions. — Promise made before debt is barred suspends running of statute, and action to recover must be brought on original obligation, but if debt is barred at time of new promise, action must be brought on new promise.

7. Limitation of Actions. — Promise to pay suspending running of statute of limitations must be clear, absolute, and unconditional, and proven to have been made within statutory time.

8. Limitation of Actions. — Unqualified acknowledgement of debt as subsisting demand prolongs statutory limitation; express promise to pay being unnecessary.

9. Limitation of Actions. — Debtor's mere admission of justice of debt is insufficient to suspend running of statute of limitations.

10. Limitation of Actions — Municipal Corporations. — Liability of property for cost of street improvements is statutory, and is controlled by 5-year statute of limitations, which starts to run 30 days after first installment on each improvement is due (Ky. Stats., sec. 2515).

11. Limitation of Actions. — Statute of limitations does not affect validity of liens, but only time of enforcing them.

12. Limitation of Actions. — Plea of limitation is personal one, and party entitled to plead it may, by his acts, conduct, or statements, estop himself to rely thereon.

13. Limitation of Actions. — Evidence of acknowledgement of, or promise to pay, ordinary debt, if sufficient to suspend statute of

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limitations, is sufficient to constitute estoppel in actions in tort or on specialty, which are required to be brought within certain time.

14. Limitation of Actions. — Acknowledgment of debt or promise to pay same must be made to creditor or some one acting for him to suspend statute of limitations.

15. Limitation of Actions. — Taxpayer's acknowledgement or new promise to pay street improvement assessment to suspend statute of limitations was required to be shown to have been made to city or some one acting for it with authority to enforce liens or to collect taxes.

16. Municipal Corporations. — Authority of city attorney to institute and prosecute actions to enforce improvement liens impliedly carried with it plenary authority to extend time of payments.

17. Limitation of Actions. — Where city council by resolution authorized city attorney to institute suits to enforce street improvement liens, taxpayer's acknowledgement or new promise to city attorney was binding, as regards question whether statute of limitations was suspended (Ky. Stats., secs. 2515, 3643-3, 3643-7).

18. Municipal Corporations. — Resolution of city council adopted in December, 1921, directing city attorney to institute action to enforce street improvement lien constituted ample authority for city attorney's institution of action for such purpose in July, 1932, since authority under resolution was continuing one until it was revoked by council.

10. Limitation of Actions. — Evidence regarding property owner's payments on cost of street improvements and her statements to city attorney held sufficient to estop her from relying on statute of limitations as defense to action to enforce street improvement liens (Ky. Stats., secs. 2515, 3643-3, 3643-7).

Appeal from Lawrence Circuit Court.

JOHN T. FRIELRICH for appellant.

WOODS, STEWART & NICKELL for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming in part and Reversing in part.

The city council of Louisa, by ordinances not here questioned, directed the paving of Lady Washington, Madison, Franklin, and Clay streets. The improvement of each of them was made in pursuance to the ordinances and in accordance with a contract entered into between the city and a contractor. They were accepted and approved by the city council. Petitions asking for the improvements were lodged with the city council by a number of the property owners, but no one of them was signed by Mary B. Horton. The city council, by

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a vote of four members-elect, at a regular meeting as authorized by section 3643-3, Kentucky Statutes, caused the improvement on each street to be made on the 10-year plan.

The separate assessments of the costs of improving her lots are:

Madison street
                Paving 69.5 @ 5.78 $ 401.71
                Sewerage 35.82
                Franklin street
                Paving 208.7 ft. @ 5.6624 1181.57
                Sewerage 105.40
                Lady Washington street
                Paving 208.7 ft. @ 5.602 1168.97
                Sewerage 104.25
                Clay street
                Paving 208.7 ft. @ 4.25985 889.01
                Paving 165 ft. @ 3.96145 653.64
                

The amount and dates of the assessments are not now disputed. The same were directed to be paid out of the city treasury, and annually placed on the tax list of the city taxes for collection as other taxes.

This action was filed in the name of the city on July 8, 1932, to enforce the improvement lien on each lot on which the cost of the improvement had been assessed in accordance with its ordinances to satisfy the balance of the costs of the improvement on Lady Washington and Clay and the whole costs of the improvement on Franklin and Madison. In her answer, she admitted that the improvement on each street had been made and assessed on the 10-year payment plan, but alleged that the cost assessed against each lot was greater than 50 per cent. of the value thereof. Also, that the assessment was placed upon the tax books of the city to be collected at the regular time of collecting other taxes, but alleged

"that more than five years elapsed next after said installment became due and payable and that by virtue of the statute and ordinances of the city, the whole of the street assessment became due and payable, and the same has remained in default and unpaid for more than five years next after the installment was due and payable and by reason

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thereof, the whole amount" "is barred by the five-year statute of limitations, being section 2515, Kentucky Statutes, in such cases made as provided."

She alleged that the ordinance of the city, fixing the assessment on the abutting property contains this statement:

"The assessments may be collected like other taxes, or, the city may at any time, after the installment remains delinquent for thirty days, by a suit in equity, enforce its lien with all the unpaid installments with interest at the rate of to date of satisfaction thereof and its costs expended. * * * The assessments thus made against property fronting, abutting or bordering on said improvements shall be collected like other taxes, or the city may at any time after the installment remains delinquent for thirty days by a suit in equity, enforce its lien on all unpaid installments and interest to date thereon with its costs expended."

The city, in avoidance of the plea of limitation, denied the installments had become due or payable, either by virtue of the statute or ordinance, or that the same were barred by the statute of limitations of five years; and further averred that she had made payments on the costs of two of the improvements, and, in consideration of the city not bringing suit against her to enforce its improvement liens, she had promised to pay the costs of the improvements as assessed against her property, and that she had continued "to make said promises and that the city of Louisa and its officials relied thereon, up to and including sometime in March or April 1931," and it "did forego to bring a suit against her to enforce a lien against her property and that said forbearance on the part of the city was brought about by her promise to pay," and by reason of the payments aforementioned, and her promises to pay the costs of the improvements, she was estopped to rely on the statute of limitations as to either of the improvements. Other pleadings were filed completing the issues.

The defense that the cost of either improvement was greater than 50 per cent. of the value of the improved lots is not now presented in this court, except

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as to one lot. As to it, she contends that the city failed to introduce evidence showing the cost of the improvement of this particular lot was not greater than 50 per cent. of its value. This argument overlooks the rule that the presumption is that the city council, when making the assessment in accordance with the statute, observed and obeyed the statute, and did not make it in excess of 50 per cent. of the improved value of the lot.

If the cost of its improvement exceeded 50 per cent. of its improved value, the burden was upon her to establish the allegation of her answer in this respect, and not upon the city to prove the negative. City of Williamsburg v. Perkins et al., 240 Ky. 160, 41 S.W. (2d) 915.

The difficult and perplexing question is the correctness of the decree of the trial court enforcing the liens on the different lots. It declared a lien of $1,273.22, with interest, subject to stated credits in favor of the city on the lot fronting Lady Washington; $889.01,...