3 S.W.2d 206 | Ky. Ct. App. | 1928
Affirming.
This is the second appeal of this case. See
"In consideration of the privilege of paying the assessment levied against my property for street improvement under contract 93, amounting to $640.44 in ten (10) equal annual installments, in the manner provided by section 3101 and 3102 of the Kentucky Statutes, with interest on all unpaid portions at the rate of six per cent. per annum from the 10th day of December, 1927, payable semiannually, I hereby agree to make no objection to any illegality *170 or irregularity with regard to the taxes against my property, levied under contract 93, and to strictly abide by section 3101 and 3102 of the Kentucky Statutes in regard to the payment of said installments and the interest due or to become due thereon, and I will pay the same in the manner so provided.
"Given under my hand this 9th day of January, 1928.
"HAYS NELSON, Property Owner."
Subsequently, and as an amendment to their separate answers, they filed a joint amended answer and cross-petition, reiterating the statements of their separate answers and cross-petitions, and further alleging that the questions and rights presented by them and which they seek to have decided involve a general or common interest of at least 100 persons and their property, and that it is impracticable to bring them all before the court within a reasonable time, and they asked leave of the court to sue for the benefit of all parties similarly situated, and that the settlement of the questions involved inure to the benefit of all of them.
The city of Ashland filed a general demurrer to both the separate and joint answers and cross-petitions, of these defendants, and the Hunt Forbes Construction Company did the same.
The court permitted these property owners to sue both for themselves and other property owners similarly situated. This was proper and permissible under section 25 of the Civil Code of Practice. Thereupon the action was submitted upon these demurrers, and the demurrers were sustained. The court ordered and adjudged that a property owner signing a waiver of defenses, under section 3101 of our Statutes, binds and pledges all of his property against which the assessment is made, in lien, and that such property owner, signing such waiver and any subsequent owner of such property were estopped, precluded, and prevented from making any defenses; that said assessment is void to the extent that it exceeds one-half of the value of the property. By section 3100, Kentucky Statutes, these assessments made after the work is completed and to pay for the work are made liens upon the property assessed, and provision is made for the collection of the assessment by the enforcement of this lien. By section 3101, a plan is provided by which the city may permit these improvements to be paid for *171 upon the 10-year payment plan, and in that section there is this provision:
"Any person who desires to exercise such privilege of payment by installment shall, before the expiration of the said thirty days, enter into an agreement in writing with the city that in consideration of such privilege, he will make no objection to any illegality or irregularity with regard to the taxes against his property, and that he will pay the same in the manner herein provided with specified interest."
The property owner had the right to exercise his option either to pay in cash within 30 days, or to pay in 10 annual installments. If he did not elect to pay in installments, of course, he could raise any question possible about the irregularity of these assessments or he could question their legality because they represented more than 50 per cent. of the value of his property; but, when he elects to pay in 10 annual installments, he waives both the illegality of the assessment and the irregularity of it, if any, and hence, when he signs this waiver, he cannot thereafter be heard to say that the assessment made against his property exceeds 50 per cent. of its value. If such a state of affairs did exist, then, of course, the assessment was void as to the excess, but, when the property owner elects to pay in 10 annual installments he cannot thereafter be heard to say the assessment exceeded 50 per cent. of the value of the property, for after he signs this waiver, that and all other defenses are gone from him and his heirs and assigns forever.
Therefore the trial court did not err in sustaining these demurrers, and its judgment is affirmed.