Rissberger v. Brown

Opinion by Judge Barker 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 [143] her. Afterwards one of these died. Eli TI. Brown, Sr., who, upon the death of his wife, became the life tenant of the .estate, seems to have kept the interest upon the debt to Rissberger paid up until 1898, when he made default, but wholly failed to pay either the State or city taxes on the property. In 1899 the appellant instituted,,this action for a judgment for his debt and an enforcement of his lien upon the property. To this action Eli II. Brown, Sr., and Elizabeth Brown, his second wife, Eli H. Brown, Jr., W. Dorsey Brown and Sarah E. Brown, children and heirs-at-law of Nancy W. Brown, the first wife, were made parties defendant, and properly brought before the court. On May 4, 1901, a judgment of foreclosure was duly entered, and on June 3d of the same year a sale of the property was had in pursuance of the terms of the judgment. At this sale Eli PI. Brown, Jr., became the purchaser of the property for the sum of $2,730, which he afterwards paid into court under a written agreement with the city of Louisville that it would look to the fund in court for the payment of all unpaid municipal taxes. This order was entered, and a deed made to the purchaser free of lien, and all questions of priority of lien between appellant, Rissberger, and the city of Louisville attached to the fund in court in lieu of the property sold. In 1891 the city of Louisville instituted an action (No. 44,441) against Eli PI. Brown, Sr., and Nancy W. Brown, his wife, to recover its taxes on the property in question for the years 1885, 1886, 1887, 1889, and 1890. The husband was properly served'with process, the wife being-dead, as before stated. In 1896 the city instituted another áction (No. 10, 091) for the taxes for the year 1891. In 1898, it instituted a third action (No. 19,419) to recover the taxes for the year 1894, and in 1899 it instituted a fourth action (No. 21,730) to re [144] cover taxes for the years 1895, 1897 and 1898. In none of these cases were the children and heirs of Nancy W. Brown made parties defendant. On the 7th day of March, 1903, the chancellor entered an order consolidating all of the tax suits with appellant’s action to foreclose his mortgage, and required the consolidated litigation to be thereafter prosecuted under the name and style of “Phillip Rissberger v. Eli H. Brown, Sr., No. 21,611.” On the 23d day of May, 1903, the chancellor entered a judgment against Eli II. Brown, Sr., for the taxes for all the years sued for, with lawful interest, making a total of $1,490.64, awarded the city of Louisville a first lien on the fund in court for its judgment, and granted it leave to withdraw the amount adjudged to it. From this judgment in favor of the city, which leaves him with more than half of his debt unpaid, Rissberger has appealed. 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— [145] justice requires upon the return of the case that both parties should be allowed to amend their pleadings so as to protect their respective rights to the fund in court. For the reasons indicated, the judgment is reversed for proceedings consistent herewith.