123 Ky. 278 | Ky. Ct. App. | 1906
Opinion by
Affirming.
In June, 1868, T. D. Elliott owned a tract of land west of and just beyond the then corporate limits of the city of Louisville. Having in view its sale, he laid it off into squares, lots, and streets and made a map thereof, which he caused to be recorded in the Jefferson county clerk’s office, thereby dedicating the streets to public use and indicating the squares and lots for sale; each square being numbered. Upon this map one square, situated near the center of the tract, was given the number 8 and designated. “Eliott Park.” Soon after the recording of the map a number of citizens of Louisville, through the firm of John Schmidt, Schwartz & Co., purchased of Elliott at the price of $39,662 all the lands east of Twenty-Ninth street, as shown on the map, except square 8, known as “Elliott Park.” The lots thus sold surrounded square 8 on all sides, save on the west. Elliott did not convey the lands sold by a Joint deed to the purchasers, for' they, as among themselves, made a divis
T. D. Elliott died in 1877, testate, leaving a large
This action was instituted by appellant, the widow of T. D. Elliott, against the city of Louisville, its park commissioners, and the parties to the contract of October 1, 1868, for the purpose of having the court declare void that contract and quiet appellant’s title to -Elliott Park, upon the grounds that the parties thereto, other than appellant, had failed to comply with their part of the contract, and that the appellee city of Louisville had failed to extend its boundary so a-s to include Elliott Park within a proper, or reasonable time. By an amended petition filed Jan
It is contended for appellant that the contract of October, 1868, was violated by the parties with whom it was made; that the laches of the parties intended to be benefited and of the city of LouisAdlle constituted an abandonment of the contract, which authorized its repudiation by appellant; that she did repudiate it, and by her resulting adverse possession of Elliott Park acquire a perfect title thereto; and that the alleged trust created by the contract in question is not enforceable because barred by limitation.
The trust created by the writing of October 1,1868, had for its primary object the pecuniary advantage of the grantor, viz., the increase that would be given the vendible value of his surrounding lands from the maintenance by the city of the park, and, secondly, the enhancement of the value of the lots that had already been sold by the grantor to the other parties named in the writing, and by making the public (i. e., the city of Louisville) a cestui que trust the parties to the writing expected to insure the maintenance of the
The claim of appellant that the contract between Elliott and his grantees was violated by the latter in failing to fence Elliott Park and plant it in trees does not seem to be sustained by the evidence. Our reading of the record inclines us to agree with the conclusion expressed by the chancellor on this point as follows: “The proof clearly shows that Elliott’s grantees fully complied with the contract of October, 1868, by inclosing square 8 (Elliott Park) with a substantial
We do not think appellant’s plea óf the statute of limitation available. The possession of herself and husband was not adverse to their grantees or the city of Louisville, because not inconsistent with the rights of the latter or their own relation to the trust created by the writing of October 1,1868. As well said by the chancellor in his conclusion No. 2: “He (T. D. Elliott), not they, was the one who held square 8 for £. public square * * * until it should be included in the city limits, at which time he was to give up his holding and carry out the agreement by conveying it to the city. Elliott and his devisee had the right to hold it until that time arrived, and, if they used it for their own advantage or gain, that fact cannot be used by them and to their profit in this contest.”
The only evidence as to expenditures made by Elliott upon the park was that he paid the State taxes on it. But he made more on it than he expended, for in 1872 or 1873 he leased it for baseball purposes at a profitable rental, and allowed it to be inclosed with a high fence and seats to be erected upon it, and it was used as a baseball ground for several years. We think he had the right, under the writing of October 1,1868, to put the park to such use during his holding of it, and to make thereby what money he could. Certainly such user was as nearly akin to the ultimate use to which it will be put by the city of Louisville as could have been contemplated by the parties to the writing in question, for by it the square was preserved intact
Much stress is placed by counsel upon the payment by appellant and her late husband of taxes on the property in controversy. No city taxes were ever paid on it, and, as the Elliotts had the use of the income from it before its acceptance by the city, it was not a hardship to them to have to pay the State and county taxes. Besides, in the absence of a provision in the writing of October 1, 1868, arranging for pay ment of taxes upon the park, they were legally chargeable to the holder of the title. The payment of taxes by private persons upon public property neither works an estoppel against the public nor passes title to the taxpayer. City of Uniontown v. Berry, 72 S. W. 295, 24 Ky. Law Rep. 1696; Busse v. Covington, 38 S. W. 865, 39 S. W. 848, 19 Ky. Law Rep. 157.
There was never an express renunciation by the Elliotts of the trust created by the contract of October 1, 1868, or notice ¿to the parties to that contract or the city of Louisville of such renunciation; nor was there ever any use of the property by them which made it impossible to carry out the trust by conveying it to the city whenever the boundary was extended so as to include it. The trust was, therefore, a continuing and subsisting one, unaffected by the statute of limitation. Ky. St. 1903, § 2543; Robinson’s Committee v. Elam’s Ex’x, 90 Ky. 304, 12 Ky. L. R. 271; 14 S. W. 84; McRoberts v. Carneal (Ky.) 44 S. W. 442. Such of the appellees as are owners of the lots adjacent to Elliott Park, purchased of the Elliotts, have 8 right in common with the city of Louisville to enforce the trust.
• The alleged, revocation relied on by appellant as arising from the bringing of this action cannot pre
Wherefore the judgment is affirmed.