City of Mount Sterling v. Bishop

• Citation: 228 Ky. 529
• Parties: City of Mount Sterling v. Bishop et al.
• Decision Date: 19 March 1929
• Court: United States State Supreme Court (Kentucky)

228 Ky. 529

City of Mount Sterling v. Bishop et al.

Court of Appeals of Kentucky.

Decided March 19, 1929.

1. Municipal Corporations. — Where no objection was made to erroneous statement of amount of assessment against lot, and statement was not corrected, amount alleged in petition in suit by city to recover assessment must be treated as correct on appeal.

2. Municipal Corporations. — Where several lots are thrown together, used in common, and become one piece of property, one special assessment may be made against all the lots for local improvements as if they constituted a single lot.

3. Municipal Corporations. — Where four lots held by single owner were platted and laid out prior to street improvement work, and were entirely separate, and fronted on different streets, city was without authority to treat all the lots as a single lot and make combined assessments lien against combined lot.

4. Municipal Corporations. — City held not entitled to recover personal judgment against owner of lots for amount of special assessment for street improvements by virtue of owner's waiver of irregularities and agreement to pay assessments upon 10-year plan, under Ky. Stats., secs. 3101, 3563, 3573-3575, since Legislature intended merely an assessment which would bind the property and not the owner.

5. Municipal Corporations. — City held not entitled to personal judgment by default against grantors of owner of lots for any part of assessments levied for street improvements, under petition alleging grantors were interested by virtue of contract recorded in clerk's office, where the amount of the assessment per front foot was less than that named as the maximum amount by the grantors in their deed by which they agreed assessment would not exceed such maximum amount.

6. Municipal Corporations. — Where installments due on special assessments were unpaid, and city exercised its option and declared due all installments under 10-year payment plan pursuant to Ky. Stats., secs. 3101, 3573, 3574, judgment should have awarded city penalty after default in payment of assessments for 30 days after exercise of option under sections 3563 and 3575.

7. Municipal Corporations. — Where sale of lots subject to special assessment resulted in failure to realize sufficient sum to pay amount of assessments without penalty, it was immaterial as to those lots that court failed to impose 10 per cent. penalty for overdue installments, under Ky. Stats., secs. 3563, 3575.

Appeal from Montgomery Circuit Court.

HENRY WATSON for appellant.

W.B. WHITE and W.C. HAMILTON for appellees.

OPINION OF THE COURT BY JUDGE LOGAN.

Affirming.

West High street in the city of Mt. Sterling is one of the original streets of the city. White boulevard is a new street laid out through a subdivision of Mt. Sterling known as Bella Vista. It extends from West High street to Reid avenue, and thence to West Main street. H.M. Bishop, one of the appellees, bought a lot lying in Mt. Sterling in 1919, and shortly thereafter erected a dwelling house thereon. This lot fronted on West High street approximately 104 feet, but was only 99 feet in width at the rear. On the west side the lot was 382 feet deep and about 371 feet deep on the east side. The home property of the late Judge Richard Reid, consisting of several acres, lay on West High street immediately west of the property purchased by appellee Bishop, and, in addition to extending south as far as the Bishop property, this lot belonging to the home place of Judge Reid included property south of the Bishep property. It was the Reid property that was known as Bella Vista.

In 1922, J. White Guynn owned Bella Vista and subdivided it into building lots and ran a number of streets through it; White boulevard was thus established. The location of the property and the lots involved in this suit are shown in the following plat:

NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERABLE.

An examination of this plat shows that lot 36 in Bella Vista subdivision fronts on West High street and runs back parallel with White boulevard, and that it lies between the property of appellee Bishop and White boulevard. Lot 37 is immediately south of lot 36, and extends back the same distance as the Bishop original lot, and also lies between the Bishop lot and White boulevard. Lot 38 in the Bella Vista subdivision lies immediately south of lot 37 and the Bishop lot and fronts on White boulevard, while lot 40 in the subdivision fronts on White boulevard, but does not adjoin the Bishop lot. Lot 39 lies between lot 38 and lot 40. At the sale of the lots in this subdivision, Bishop purchased lots 37, 38, and 40. These lots were purchased by Bishop at the sale in 1922. In 1923 the city enacted an ordinance providing for the paving of West High street abutting the property of Bishop and also White boulevard abutting the Bella Vista lots purchased by Bishop. After the completion of the work, the city on December 31, 1923, enacted an ordinance assessing the cost of the improvements against the owners of the lots of land abutting on West High street and White boulevard. The amount assessed against the lot fronting on West High street belonging to appellee Bishop was $522.90 for a frontage of 101 feet; the amount assessed against lot 37 in the Bella Vista addition was $972.40; the amount assessed against lot 38 in the subdivision was $660.27; and the amount assessed against lot 40 in the subdivision was $243.10. The amounts assessed against lots 37, 38, and 40 were for the paving of White boulevard, and the amount assessed against the original Bishop lot was for the paving of West High street.

After the assessment of December 31st was made, J.S. Haggard loaned Bishop a sum of money and accepted a mortgage on the lot fronting on West High street as security for the payment of the loan. On December 26, 1925, suit was instituted by the city against Bishop and his wife, the Mt. Sterling National Bank, J.S. Haggard, M.O. Cockrell's executrix, and J. White Guynn and wife, in which it was sought to enforce the amount of the assessments fixed by the ordinance of December 31, 1923; but the petition treats the original Bishop lot, lot 37 in the subdivision and lot 38 in the subdivision as one lot, and sought to enforce a lien against the lot for the total assessments, including the assessment made against lot 40, which does not adjoin either of the other lots. Haggard was made a party to the suit because of the loan he had made to Bishop and the mortgage he had executed to secure it. Guynn and his wife were made parties to the suit because in conveying the lots to Bishop they had agreed that the cost of the street improvements would not exceed a certain sum per front foot, and, if the cost exceeded such sum, they would be personally responsible to Bishop for the excess. The city sought to recover the excess from White in this action.

When Haggard filed his answer, he set up all of the facts as stated above, and interposed the defense that the city could not treat the original Bishop lot and lots 37 and 38 as one lot, but that the assessment against each lot separately must stand and that the lot fronting on West High street was responsible only for the assessment made against it, and that it was not responsible for any part of the assessment made against lots 37, 38, or 40. The amount of the assessment against the lot fronting on West High street was erroneously stated, but no objection was made to the amount, and it was not corrected, so the amount alleged in the petition must be treated as the correct amount in this proceeding. After Haggard filed his answer, the city council in June, 1926, enacted another ordinance in which it sought to amend and correct the original ordinance so as to make the assessment against the lot fronting on West High street and lots 37 and 38 one assessment, and sought to make the combined area of these lots one lot.

After the taking of proof, the chancellor entered a judgment in which he held that the assessments made against the individual lots must stand and that the city council was without authority to combine the lots to make the combined assessments a lien against the combined lot. The judgment gave the city a lien against the lot fronting on West High street for the amount of the original assessment against that lot, and enforcing the mortgage lien of Haggard, but decreed that his lien was inferior to the lien of the city for the assessment. The property was sold by the master commissioner and purchased by Haggard for $3,000. Out of that sum, he is required to satisfy the amount due the city by reason of the assessment. Judgment was entered directing the...