120 Ky. 142 | Ky. Ct. App. | 1905
Opinion by
Reversing.
Eli IT. Brown, Sr., and his wife, Nancy W. Brown in 1881 mortgaged a lot of ground and the improvements thereon, in Louisville, to the appellant, Philip Rissberger, to secure the payment of a note of even date with the mortgage for the sum of $2,000. In 1885 Nancy W. Brown, the owner of the property, died, leaving her husband and four children surviving
The judgment of the chancellor is clearly erroneous. The fund in court is the proceeds of the sale of the fee-simple title under the judgment of foreclosure, where all the owners were parties defendant, and properly before the court. The city had properly assessed the property for taxation against Eli H. Brown, Sr., who was the life tenant, but, as he alone was before the court in its actions for taxes, no interest of the remaindermen could be subjected to their payment. (Woolley v. City of Louisville, 118 Ky., —, 82 S. W., 608, 26 Ky. Law Rep., 872, and Fenley v. City of Louisville, 119 Ky., —, 84 S. W., 582, 27 Ky. Law Rep., 204. Appellee was entitled, of the fund in court, only to the interest of Eli H. Brown, Sr. As a good deal of confusion seems to have arisen by reason of the consolidation of the five actions— from the fact that appellant in his action ignored the city, and the latter in its actions ignored appellant—
For the reasons indicated, the judgment is reversed for proceedings consistent herewith.