Southern Warehouse & Transfer Co. v. Mechanics' Trust Co.

• Citation: 56 S.W. 162
• Parties: SOUTHERN WAREHOUSE & TRANSFER CO. v. MECHANICS' TRUST CO. et al. [1]
• Decision Date: 29 March 1900
• Court: Court of Appeals of Kentucky

56 S.W. 162

SOUTHERN WAREHOUSE & TRANSFER CO. v. MECHANICS' TRUST CO. et al. ^[1]

Court of Appeals of Kentucky.

March 29, 1900

Appeal from circuit court, Jefferson county, common pleas division.

"Not to be officially reported."

Action by the Mechanics' Trust Company and the city of Louisville against the Southern Warehouse & Transfer Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

H. M Lane and Bullitt & Shield, for appellant.

Richards Baskin & Ronald and John Mason Brown, for appellees.

HOBSON J.

But two questions are made on this appeal: (1) That the taxes recovered by the city of Louisville were not properly levied by ordinance duly published, or upon property which had been regularly assessed; (2) that the trustee in the mortgage should have been allowed an attorney's fee out of the mortgaged property.

As to the taxes, the city made out a prima facie case by the bills duly authenticated. There is nothing in the record to overcome this presumption. The publication of the ordinances is distinctly alleged in the petition, and there is no proof in the record that the officers did not do their duty. Without this, it must be presumed that the proceedings were regular. Besides, the statute in force in December, 1892 provided that such an ordinance "shall as far as it bears upon the levy, assessment, collection, or enforcement of taxes be enforced without or before publication." If it were true, therefore, that this ordinance was not published in the Courier-Journal, as counsel contends, the levy of the tax would not, under this statute, be invalid. As to the assessment of the property, the chief complaint is of alleged irregularities in the appointment or proceedings of the board of supervisors. But all this, as has been often held by this court, would not, under the statute, defeat the recovery of the taxes. See Fonda v City of Louisville (Ky.) 49 S.W. 785, and several subsequent cases.

It is stipulated in the mortgage, which was given to secure 40 bonds of $1,000 each, that the trustee should, in certain contingencies, bring suit to foreclose it, and in this event should be allowed his reasonable attorney's fee out of the mortgaged property in addition to the debt. The lower court refused to make this allowance, being of the opinion that this stipulation of the contract was contrary to public policy and void. In Kentucky Trust Co. v. Third Nat. Bank (Ky.) 50 S.W. 43, this...