Gay v. City of Louisville

• Decision Date: 04 October 1892
• Citation: 93 Ky. 349,20 S.W. 266
• Parties: Gay et al v. City of Louisville.
• Court: Kentucky Court of Appeals

20 S.W. 266

93 Ky. 349

Gay et al v. City of Louisville.

Court of Appeals of Kentucky.

October 4, 1892

Appeal from Louisville law and equity court.

"To be officially reported."

Action by the Louisville Safety Vault & Trust Company against John Gay, Jr., and others for settlement of an estate, and the sale of realty to pay debts. During the pendency of the action, bills of unpaid taxes were filed by the city of Louisville, which the court ordered paid out of the proceeds. Defendants appeal. Reversed.

Lewis J.

John Gay, Sr., died intestate, leaving several children, some of whom were infants, and an estate consisting of land and personalty, but not enough of the latter to pay debts; and consequently the Louisville Safety Vault & Trust Company, a corporation, having been appointed administrator, brought this action for settlement of its accounts, and for sale of real property sufficient to pay debts. During pendency of the action the city of Louisville filed, under order of court tax bills of unpaid municipal taxes for several years, and without having been passed on and reported favorably by the master commissioner, or proved in any way, the lower court adjudged the amount of such taxes for the years 1883 to 1887 inclusive, be paid out of proceeds of land belonging to decedent's estate that had been sold under previous judgment. Section 773, tit. 19, Louisville Chancery Court Civil Code, provides that court "may, in actions for the sale or real property, determine summarily, with or without written pleadings the amount of any state or municipal tax or assessment upon the property to be sold, and shall provide for the payment of the same in the judgment; and, if the plaintiff shall fail to ask therefor, the purchaser shall be entitled at any time before payment of the purchase price to a credit for the amount thereof." Even if it be conceded that section was intended to apply to actions for settlement of estates of deceased persons provided for by chapter 3, tit. 10,-which is by no means clear,-still, giving to the section a fair and reasonable construction, we are satisfied no more discretion was intended to be given to the chancellor than simply to decide upon validity of tax bills, and the question of lien on property sought to be sold, without written pleadings; for it would be without the power of the legislature to authorize a court to adjudge a tax bill in favor of either the state or city of Louisville...