Dressman v. Farmers' & Traders' Nat. Bank

• Decision Date: 03 February 1897
• Citation: 100 Ky. 571,38 S.W. 1052
• Parties: DRESSMAN v. FARMERS' & TRADERS' NAT. BANK OF COVINGTON.
• Court: Kentucky Court of Appeals

38 S.W. 1052

100 Ky. 571

DRESSMAN v. FARMERS' & TRADERS' NAT. BANK OF COVINGTON.

Court of Appeals of Kentucky.

February 3, 1897

Appeal from circuit court, Kenton county.

"To be officially reported."

Action between Henry Dressman and the Farmers' & Traders' National Bank of Covington. From a judgment for the latter the former appeals. Reversed.

D. A Glenn, for appellant.

James W. Bryan, for appellee.

BURNAM J.

This case involves a question of law growing out of these facts The city of Covington, through its contractor, the appellant, improved Linden avenue by grading and paving, and, by an ordinance properly passed, assessed and levied a lien upon a couple of lots located in Morton's subdivision, and fronting said Linden avenue, where the work was done, to pay their proportionate part of the expense of the improvement. This ordinance was passed and lien imposed August 2, 1892, upon the property which was owned by H. T. Morton, who previous to his death, in December, 1889, had given a mortgage on this property to the appellee, the Farmers' & Traders' National Bank. There is no question raised as to the regularity of the proceedings of the council, or as to the validity of the mortgage to appellee. The sole question is, which lien has priority? The court below held that appellee was entitled to be paid first, and ordered a sale of the property to satisfy both liens. Upon the sale of said property, it brought less than the amount of appellee's claims, and appellant was left without relief, and brings his case to this court, and asks a reversal of the judgment of the lower court.

The legislature of Kentucky, by its act of March, 1850, amending and reducing into one the various provisions concerning the city of Covington, in article 2,§ 7, gave the council full power and authority to cause and procure all streets to be graded and paved, and apportion the costs and expenses thereof equally on the fronting and abutting property and the owners thereof, according to the front feet, and gave a lien on the property for its proportion of the expenses in this language: "A lien is hereby given on the lots or parts of lots for same, which cost and expenses may be listed and collected as other taxes are by the city collector or any special collector who shall have authority to sell and convey the lots or parts of lots, according to such by-laws and regulations as shall be adopted by the council." The legislature also provided, by subsequent legislation, that such lien might be enforced in a court of equity, "wherein all the lienholders could come and have their liens adjusted." The mortgage of appellee was acquired December 11, 1889, a date subsequent to the city charter, but prior to time to the date of the ordinance requiring the improvement to be made. "The appellee contends that an assessment made for constructing a street by the city council does not partake of the character of a tax levy, and that, in the absence of a charter provision making it a first lien upon the property abutting the improvement, it takes its place in line with the existing lien claims against said property," and can only be paid after all prior lien incumbrances have been discharged in full. It is manifest that this contest for priority is really between the city of Covington, on the one hand, and the mortgagee, on the other. It is admitted by appellant that the sections of the city charter quoted above do not, by express provision, give the city a first lien for local assessments for street improvement, but it is insisted that such was the intention of the "lawmaking" power.

The attention of the court has not been directed to an adjudicated case where the precise question involved in this appeal has been passed upon. The distinction between taxes pure and simple, and assessments for local purposes, has...