District of Clifton v. Schneider

| Ky. Ct. App. | May 17, 1899

JUDGE WHITE

delivered the opinion of the court.

The appellant was created a taxing district or corporation authorized to contract for and have constructed certain street improvements, the cost thereof to be paid by the owners of property abutting thereon, to be paid, however, in ten equal installments, together with interest, payable annually, and for the costs of this street construction a lien was given on the abutting property.

The work was done, and all steps necessary under the act done to charge the property. The annual payments for the years 1895, 1896, 1897 and 1898 not being paid, this action was brought to enforce the lien and for a sale of the property to satisfy same.

The case was submitted on the petition alone, and the lower court rendered judgment dismissing the petition, for the reason, as stated, the action to enforce the lien could not be maintained till all the liens fell due, under subsection 3, section 69á of Civil Code. From that judgment, this appeal is prosecuted.

There being no answer, every fact stated in the petition is taken as true by confession, and the only question presented is, can a foreclosure of the liens for improvement be had till all are due?

This is not made a personal obligation, and a personal judgment could not be rendered therefor. The only remedy is a sale of the property to pay this assessment.

The property sought to be subjected are lots in a city, each about twenty-five feet in width, with a separate amount ■ against each lot. It therefore follows that the property is not susceptible of division.

It is insisted by appellees that the judgment of the. lower court should be affirmed, as subsection 3 of section G9á of the Civil Code provides that no sale of indivisible property shall be made till all debts that are a lien thereon are due.

TVe are of opinion that that section of the Code has no application to this. case. The act under which this charge against this property was authorized- and created does not authorize a personal judgment against the owner, but makes the amount of this assessment due to the appellant, ánd payable in annual installments, and is made a direct charge on the lots fronting on the improve-’ ment. This is not a debt due by appellees. No judgment could be rendered against them for the amount of the whole or of any annual assessment. It is a charge on the land, yet it was not provided or intended that all should be paid in any one year. It was evidently the intention of the Legislature to charge this property, abutting the improvement, with an annual tax for the payment of the cost of the improvement. We are of opinion that the annual assessment, as here sought to he collected, is but a special tax on the property, and that, like other liens for taxes, may be'sold for all past-due amounts, regardless of the fact that in each year, as long as it exists, a similar charge will come and be a like lien on the property. There should evidently, be but one sale for all past-due sums, but this would not exhaust the lien for the future years, no more than a sale by a sheriff for taxes would forever exempt that property for tax liens. The amounts of this special tax that is not due and included in the judgment of sale would still be a lien on the property, and for such sums unpaid the property could be again subjected to sale, in the hands of any person, like any other tax. The material difference between this and ordinary taxation is that this exists only ten years, and for a sum fixed per year, while taxes go on forever, and vary in amounts. For the reasons indicated, the judgment dismissing the petition is reversed, and cause remanded to overrule the demurrer tó petition and for proceedings consistent herewith.