Rissberger v. Brown

• Decision Date: 16 March 1905
• Citation: 120 Ky. 142,85 S.W. 731
• Parties: RISSBERGER v. BROWN et al.
• Court: Kentucky Court of Appeals

85 S.W. 731

120 Ky. 142

RISSBERGER v. BROWN et al.

Court of Appeals of Kentucky.

March 16, 1905

Appeal from Circuit Court, Jefferson County, Chancery Division.

"To be officially reported."

Action by Phillip Rissberger against Eli H. Brown and the city of Louisville. From the judgment rendered, plaintiff appeals. Reversed.

R. T Colston, for appellant.

Henry L. Stone, for appellee city.

BARKER J.

Eli H Brown, Sr., and his wife, Nancy W. Brown, in 1881 mortgaged a lot of ground and the improvements thereon, in Louisville, to the appellant, Phillip Rissberger, to secure the payment of a note of even date with the mortgage for the sum of $2,000. In 1885, Nancy W. Brown, the owner of the property, died leaving her husband and four children surviving her. Afterwards one of these died. Eli H. Brown, Sr., who, upon the death of his wife, became the life tenant of the estate seems to have kept the interest upon the debt to Rissberger paid up until 1898, when he made default, but wholly failed to pay either the state or city taxes on the property. In 1899 the appellant instituted this action for a judgment for his debt and an enforcement of his lien upon the property. To this action Eli H. Brown, Sr., and Elizabeth Brown, his second wife, Eli H. Brown, Jr., W. Dorsey Brown, and Sarah E Brown, children and heirs at law of Nancy W. Brown, the first wife, were made parties defendant, and properly brought before the court. On May 4, 1901, a judgment of foreclosure was duly entered, and on June 3d of the same year a sale of the property was had in pursuance of the terms of the judgment. At this sale Eli H. Brown, Jr., became the purchaser of the property for the sum of $2,730, which he afterwards paid into court under a written agreement with the city of Louisville that it would look to the fund in court for the payment of all unpaid municipal taxes. This order was entered, and a deed made to the purchaser free of lien, and all questions of priority of lien between appellant, Rissberger, and the city of Louisville attached to the fund in court in lieu of the property sold. In 1891 the city of Louisville instituted an action (No. 44,441) against Eli H. Brown, Sr., and Nancy W. Brown, his wife, to recover its taxes on the property in question for the years 1885, 1886, 1887, 1889, and 1890. The husband was properly served with process, the wife being dead, as before stated. In 1896 the city instituted another action (No. 10,091) for the taxes for the year 1891. In 1898, it instituted a third action (No. 19,419) to recover the taxes for the year 1894, and in 1899 it instituted a fourth action (No. 21,730) to recover taxes for the years 1895, 1897, and 1898. In none of ...