119 Ky. 761 | Ky. Ct. App. | 1904
Opinion of the court by
Dismissing Appeal.
Appellee sued appellant, in an- action- in. the nature of express assumpsit, to recover $170. The answer denied the alleged agreement, and pleaded as a .set-off that appellant had paid for appellee certain taxes on lands owned by them jointly, in a given proportion, when the legal title was in appellant to the whole tract, while appellee owned the equitable title to the proportion named. The sum claimed by appellant on this account was $95.24. The circuit court struck out so much of his pleading as claimed the taxes. The verdict and judgment on appellee’s claim was in her favor.
The first question is, has this court jurisdiction of the appeal? To give this court jurisdiction of an appeal, the amount in controversy must be $200, exclusive of interest
A set-off is a cause of action arising upon a contract, judg- • meat, or award in favor of a defendant against a plaintiff. Subsection 2 of section 96, Civ. Code Prac. It is- a suit within a suit. Defendant alleged by way of set-off, and therefore as constituting a cause of action against the plaintiff, that he and the plaintiff owned jointly, in unequal proportions, a farm in Scott county; that he held the legal title to the whole of it, but that for certain years the plaintiff -was the -owner by title bond from appellant of the equitable title to the portion named, being something less than one-half; that the tax had been assessed against him, and that he had paid all of it; and that plaintiff’s- proportion was $95.24, in the aggregate, which she had not paid. Section 4023, Ky. St. 1903, makes the holder of the legal title to land, and the holder of the equitable title also, liable for the taxes thereon; “but as between themselves, it shall be the duty of the holder of the equitable title to- list the property and pay the' taxes thereon, whether the property be in possession or not at the time -of the payment.” Section- 4038 provides that “whenever the occupant of any land. * * *
But a set-off. must be based upon a contract, judgment, or award. There is no claim that defendant paid the tax for plaintiff under a contract, or under a request that would imply a promise to repay. No statute would be needed to allow a recovery in such stale of case. This is purely and simply a statutory liability. Penalties or forfeitures, fixed or allowed by statute, and torts and unliquidated demands have not been allowed as matters of set-off. The language of the Code, no less than the practice before, exclude such as matters of set-off. We think to this class belong pure statutory liabilities — involuntary liabilities. The action of the circuit court was therefore proper, in striking out that matter as a set-off, although it may have constituted a good cause of action by defendant against plaintiff. This leaves - the amount in controversy
Appeal dismissed.
March 15, 1904. On motion for judgment on supersedeas hond.
The judgment in this case was superseded. The appeal was dismissed because the court had no jurisdiction of the appeal. The case now comes upon the motion of the appel-lee for judgment for damages on the supersedeas bond. The court is of the opinion that as the court has not the jurisdiction to entertain the appeal, we are likewise without jurisdiction to enter a judgment upon the supersedeas bond.
Motion overruled.