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of the farm as now constituted. The tenta- the general outline of the remainder. Active division, which they suggested, would cording to all the evidence on both sides, the give each tract an outlet by this old road tract is worth from $45 to $50 per acre. and make the whole easily accessible to the All the neighboring landowners give evidence pike, which is a short distance away. A to this effect. Those most interested assert map showing the situation and general out- that 30 acres laid off, as proposed, will be line of the tract is made a part of the record. adequate to raise a sum sufficient to satisfy The trial court in its judgment directed a the entire lien debt. When laid off, as sugdivision of the lands, in kind, after a suffi- gested, the loss of the 30 acres will not so ciency thereof had been sold to satisfy the impair the residue as to render a division lien debt of J. M. King. It denied plaintiff's impracticable. The judgment directs the masclaim for rents and adjudged the cost largely ter commissioner to sell only enough of the against her. tract to satisfy the lien debt, and, when this sale is made, definitely fix the boundary of the tract sold so that the balance can be certainly known and boundaries fixed. There is no good reason why the judgment should not have directed a division of the residue after the sale of this portion for the satisfaction of the lien claim. This court, in the case of Maynard v. Maynard, 178 Ky. 332, 198 S. W. 910, approved a judgment partitioning lands after a sale of a portion to satisfy a lien debt, in substance the same as the one complained of here. Certainly appellant, Mrs. V. J. King, will not be prejudiced by such division.

[1, 2] It is a well-established rule that where lands are susceptible of division, without material impairment of their value, a division thereof will be had, if desired by the owners, rather than a division of the proceeds after a sale for that purpose. The rule is stated in Kirk v. Crutcher's Adm'r, 145 Ky. 52, 139 S. W. 1076, thus:

"The law favors a division of land rather than a sale for division, and a sale will not be ordered unless substantial injustice will be done by a partition."

To the same effect is Prewitt's Committee v. Hurt, 178 Ky. 528, 199 S. W. 33. It is urged, however, that the land is not on the main highway, is isolated, and that its shape and general nature is such as to render it impossible to make a division into three parts, after satisfying the lien debt, without materially impairing its use as well as its salable value. It is urged in support of this that the farms adjoining this tract are large and devoted to tobacco and wheat raising, and that there are no tracts with as few as 100 acres, in that vicinity. We have carefully examined the map and evidence relating to the shape, nature, and character of the lands in question, and are firmly of the opin

ion that the lands are susceptible of the division proposed without materially affecting which runs through the farm is an east outlet for each proposed tract, and has been employed in the enjoyment of the farm as a whole and may be so employed by the several owners when divided. While most of the evidence introduced by both sides presents chiefly the opinion of the witnesses, yet there is sufficient testimony, aside from the map introduced, to have fully warranted the trial court in arriving at the conclusion that the lands are susceptible of advantageous division.

their usefulness or value. The old road

[3] It is next urged that the judgment of partition is premature, in that the lien debt must first be satisfied, and this would take an unascertained part, leaving at present an unknown number of acres for division. This position is not well taken. The commissioners appointed to divide the lands, and who made the tentative report of division, so arranged the division as that the part sold may be increased or diminished without changing

For

[4] Appellant insists that she was entitled to recover rents for the use of the farm for the year 1916. D. M. King died in October, 1915. He and his wife were residing upon the farm in question at the time of his death, and some of the wheat lands had been prepared, if not sown, for the following year. The widow continued to reside in the mansion house on the farm; she rented some of the land and caused it to be cultivated. this the appellant claims rent. The widow was entitled to the use and occupancy of the mansion house, barn and lot, garden and orchard, if there was one, free from rent until assigned dower. No dower had been astion. J. M. King does not reside upon the signed up to the commencement of this acfarm, but owns a large one near by. He did not occupy or use any part of the farm in question. The widow, Mrs. Katie King, used less than one-half of the farm according to the evidence. She was entitled to use at least one-third of the farm in addition to the house, garden, barn, and lot, etc. J. M. King cluding the house, garden, etc., which the was entitled to one-third of the farm, exwidow occupied; but he is not claiming rent from the widow, and insists that she is entitled to the use of the place without paying rent. If appellant, Mrs. V. J. King, was entitled to rent at all, it was upon one-third of the farm exclusive of the widow's right to use the house and premises. According to the evidence, J. M. King approached V. J. King in the early part of 1916 and inquired of her what she wanted to do with her part of the D. M. King farm that year, and she declined to give him an answer or to tell him what she wanted to do. Her son advised

her that she should indicate what her pur- | first to exhaust the personal property bepose was, but she refused. From the evi- fore asserting his lien upon the real propdence it further appears that about one-half | erty. Appellees denied that there was sufof the farm was not used at all that year, ficient funds in the hands of the personal and both Mrs. Katie King and J. M. King as- representative to discharge in whole or in sert that they were willing for appellant to part the lien debt. This is not an action for have the use of some part of the farm and a settlement of the estate of D. M. King, did not interfere with her using or occupying but is a suit for a sale of lands for a divithe same. Considered in the light of this sion of the proceeds. The lien note is preevidence, we do not think the trial court sented by the answer of the defendant J. M. erred in refusing to allow appellant, V. J. King. It is admitted to be a lien upon the King, to recover rents for the year 1916. lands sought to be divided. Its holder had the right to assert his claim and to enforce his lien against the lands in this action. Especially is this true where no settlement of the estate is prayed, or effort made to show that an administrator has in his hands sufficient funds with which to satisfy the incumbrance.

Complaint is made that one of the commissioners appointed to divide the land was not qualified because of partiality, but we find no sufficient ground upon which to rest this complaint. From the evidence it appears that the commissioner complained of is a man of good standing in his county, wide experience, and of special fitness for the work contemplated. He is a surveyor who has helped to divide a great number of tracts of land, and who has been repeatedly elected to the office of county surveyor of Harrison county.

[5, 6] It is also insisted by appellant that the lien note presented by the answer of the defendant J. M. King is not sufficiently proven under sections 3870-3874, Kentucky Statutes. In view of the fact that the pleadings and all the evidence in the record sustains the justness of the claim, and the further fact that appellant in her brief admits that the note is a just charge against the lands, this court would not be justified in reversing the judgment of the lower court upon this ground. Moreover, this court has in more

than one instance sustained such claims upon substantially the same kind of proof as here presented. No objection was made in the lower court to the claim based on the note, because of insufficient verification. Reply was filed and issue joined upon the claim without objection. Repeatedly this court has held that this question is waived by pleading to the claim. In Maynard v. Maynard, supra, it is said:

"The proper procedure in raising this question in the trial court is a motion for a rule to require verification of the claim. Thomas v. Thomas, 15 B. Mon. 178. It cannot be done by filing a demurrer to the pleadings, as counsel argue the question was raised by them in the trial court. By filing the demurrer to the pleading, setting up the claim, plaintiff waived demand and proof, Lytle v. Davidson [67 S. W. 34] 23 [Ky. Law] Rep. 2262, as does a plea to the merits of the claim, Hudson v. Combs, 110 Ky. 762 [62 S. W. 709]; Gray v. Graziani, 165 Ky. 771 [178 S. W. 1070]."

[7] Appellant asserts that there was sufficient personal property and money in the hands of the administrator, J. M. King, to have fully paid off and satisfied the lien note in question, and that it was his duty

[8] The trial court adjudged the cost of the assignment of dower against appellant, and this we think was error. There was no controverted question of fact with reference to the assignment of dower. The petition admitted that the widow Katie King was enThe answers assert the same. titled to dower. The cost in this respect should have been paid by all of the parties interested, according to the rule.

Judgment is affirmed, with direction to correct the taxation of costs as I have above indicated.

COHEN v. CITY OF HENDERSON.

(Court of Appeals of Kentucky. Dec. 20, 1918.) 1. MUNICIPAL CORPORATIONS 265-STREET IMPROVEMENTS-POWER-SOURCE.

Generally a municipal corporation, subject to constitutional restrictions, may do anything in the way of street improvements which its charter or other statute authorizes it to do, but in contracting for such work it is limited by the

terms of the statute under which it proceeds.
2. MUNICIPAL CORPORATIONS 340-STREET

IMPROVEMENTS-CONTRACT.

improvements must conform to the statute which Municipal corporation contract for street authorizes the work to be done.

3. MUNICIPAL CORPORATIONS 350-STREET IMPROVEMENTS-ILLEGAL CONTRACT-LIABILITY OF MUNICIPALITY.

Municipal corporations cannot be held liable for costs of street improvements, where the statute prohibits a municipal corporation from constructing streets at the cost of the municipality.

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4. MUNICIPAL CORPORATIONS 374(1) STREET IMPROVEMENTS-LIABILITY OF CITY. nicipal corporation's power to construct street Where statute imposes conditions upon muat its own cost, the municipality cannot be made liable for street improvements, unless such conditions are complied with.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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7. MUNICIPAL CORPORATIONS 374(1) STREET IMPROVEMENTS-LIABILITY.

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Appeal from Circuit Court, Henderson County,

Action by Joseph Cohen against the City

In absence of statute prohibiting municipal- of Henderson. Judgment of dismissal, and ity from improving street at its costs, generally, plaintiff appeals. Affirmed. municipality having power to contract for street improvement, but no authority to make the costs a charge upon abutting property, is prima facie liable to contractor.

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8. MUNICIPAL CORPORATIONS 374(1) STREET IMPROVEMENTS-LIABILITY OF MUNICIPALITY,

Vance & Heilbronner, of Henderson, for appellant.

B. S. Morris, of Henderson, for appellee.

HURT, J. The city of Henderson is a city of the third class. In 1912 the General Assembly attempted to amend section 3459, Ky. City authorized to contract for street im- Stat., which is a part of the charter of cities provement, and not prohibited from paying for of the third class. The attempted amendthem, is liable to contractor, though contract ment is now section 3459a, Ky. Stats. It provided that improvements should be made at provided a very comprehensive plan for the the costs of abutting property, where city hav-construction and reconstruction of the streets ing authority so to do fails to take the proper steps to make the abutting property liable to an assessment for the costs.

9. MUNICIPAL CORPORATIONS STATUTES 63 - ORDINANCES UNCONSTITUTIONALITY.

of the cities of that class, upon what is termed the "ten-year" plan, at the cost of the owners of the property abutting upon the streets, 111(1) and provided for issuing the bonds of the muEFFECT OF nicipality, for the costs of the improvement, in anticipation of the collection of the assess

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Neither an unconstitutional statute nor ordi-ments to be made against the property ownnance founded thereon can create any rights or ers. It is gathered from the petition that on bestow any powers.

10. MUNICIPAL

CORPORATIONS 350 STREET IMPROVEMENTS-INVALID CONTRACT. Ky. St. § 3459a, being unconstitutional, an ordinance directing mayor to enter into street improvement contract under such statute, and contract entered into pursuant to such ordinance, are void, and city cannot be held liable for improvements made pursuant thereto.

11. MUNICIPAL CORPORATIONS 851 CONTRACTS-STATUTES.

Contractors who deal with municipal corporations, in regard to matter provided for by its charter, are bound to see that charter provisions are complied with, and upon failure so to do must suffer consequences.

the 10th day of July, 1912, the common council of the city of Henderson, adopted an ordinance, which provided for the construction of concrete gutters, curbs, and sidewalks, upon certain of the streets of the city, in accordance with the plan provided by section 3459a, supra, and directed the mayor to enter into a contract with some one to make the improvements, as provided in the ordinance. In pursuance to the ordinance, a contract was entered into between the city, acting by the mayor, and the Stratman ConThe crete Company, for doing the work. contract was in accordance with the ordinance, which was referred to and made a part of the contract. The ordinance provided that the improvements should be made as provided

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

appellant insists that, inasmuch as the city made a contract for the doing of the work at the costs of the abutting property, and to pay for it out of a fund to be raised by assessments upon the property, and having ac

by section 3459a, supra. The work was done in accordance with the ordinance and contract, and all the requirements of section 3459a were complied with, which were required by that act to make the costs of the improvements a lien upon the abutting prop-cepted the work as having been done accorderty. In accordance with the terms of that statute, the cost of the work was apportioned between the various abutting property owners, who having failed to pay the costs within 30 days the city executed its bonds in payment of the work, as provided by section 3459a, and delivered them to the contractor. The bonds were made payable to bearer, and contained a recitation that they were issued in pursuance of the above-mentioned ordinance, and by virtue of the power vested in the city by the statute, section 3459a, and to secure their payment the faith and credit of the city was pledged, as well as a lien on the abutting property. The appellant became the owner of several of the bonds by purchase from the contractor or his vendee.

ing to the contract, and the property owners having refused to pay the assessments, and the city being unable to enforce the payments of the assessments, that the city is primarily liable, and can and should be required to pay the bonds. In support of this contention the cases of City of Louisville v. Hyatt, 5 B. Mon. 199, City of Louisville v. Leatherman, 99 Ky. 213, 35 S. W. 625, 18 Ky. Law Rep. 124, City of Louisville v. Bitzer, 115 Ky. 359, 73 S. W. 1115, 24 Ky. Law Rep. 2263, and Hancock Co. v. City of Mt. Sterling, 170 Ky. 207, 185 S. W. 856, are cited, but neither of these cases seem to be in point, as will hereafter be shown.

[1, 2] As a general rule, a municipal corporation, subject to constitutional restrictions, may do anything in the way of street improvements which its charter or other statute authorizes it to do; but, in contracting for such work, it is limited by the terms of the statute under which it proceeds, and a contract to perform such work must conform to the statute which authorizes the work to

ing streets at the cost of the municipality, or impose conditions upon its power to do so, the municipality cannot be made liable in the first instance for street improvements, nor in the second instance unless the conditions are complied with.

This court, in the case of Hickman v. Kimbley, 161 Ky. 652, 171 S. W. 176, held that section 3459a, supra, was enacted contrary to the requirements of section 51 of the Constitution, and was therefore void, and it further held that an ordinance enacted for the construction of a street under that statute was void, because the provisions for the pay-be done. ment under that act could not be disregarded, [3-8] (1) Where statutory provisions proand the provisions for the construction sus-hibit a municipal corporation from constructtained, since provisions for the payments are such a material part of the ordinance that it is impossible to separate them from the other provisions of the ordinance, and assume that the improvements would have been ordered, without the provisions for payment. The opinion in that case was followed and approved in City of Henderson v. Lieber's Ex'r, 175 Ky. 15, 192 S. W. S30, wherein it was held that an ordinance similar to the one mentioned above was void, because the common council was without authority to enact such an ordinance, and that the costs of improvements made under an ordinance, under the provisions of section 3459a, did not create any lien upon the property of the abutting property holders, and that it could not be subjected for an assessment by virtue of an ordinance under that act.

(2) Where a statutory provision applies to a municipal corporation, to the effect that the corporation cannot be made liable for street improvements, unless it shall have the right to enforce the payment of the costs against the property which receives the benefits of the improvements, that provision is upheld; but it is held that, where such a statutory provision prevails, it applies only to cases where the corporation has the right and authority to make the improvement at the costs of the abutting property, and does not apply to cases where the corporation Cohen, alleging in his petition substantially has the right to contract for the improveas stated above, sued the city of Henderson, ments, and is not prohibited by statute from and sought to recover of it the amount of his paying for them, but on account of the nabonds, with interest. The city interposed a ture or ownership of the property it cannot general demurrer to the petition as amended, be subjected to the costs, and in the latter which was sustained, and the action dismiss-state of case the corporation will be liable to ed, and from the judgment, Cohen has ap- the contractor, although the contract propealed. vided that the improvements should be made at the costs of the abutting property.

(a) The petition avers that the ordinance under which the work was done and the bonds issued is void, and that the bonds cannot be collected from the abutting property owners, nor can the lien attempted to be created be enforced against the property; but

(3) In the absence of statutory provisions prohibiting a municipality from improving the streets at its costs, the general rule is that, where a city or town has the power and authority to contract for a street improve

ment, but has no authority to make the costs [9-11] (b) One of the principles consistentof the improvement a charge upon the abut-ly adhered to in all the cases is that, before ting property, the corporation is primarily the municipal corporation can be made liable liable to the contractor.

for street improvements, it must appear that the contractor has a valid contract with the corporation by which it bound itself to pay for the improvements. To make the contract valid, the corporation must have the power to enter into the contract, and, if possessing the power to make the contract, the requirements of the statute giving it the power must have been complied with, and the plan provided by law for the making of the contract must have been adhered to. The statute in the instant case, which authorized the ordinance under which the work was done, and the ordinance itself, are both confessedly void. The condition is just the same as if section 3459a of Ky. Stats, had never been attempted to be enacted. An unconstitutional statute, and an ordinance founded up such statute, neither can create any rights nor bestow any power. As said in Norton v. Shelby County, 118 U. S. 426, 6 Sup. Ct. 1121, 30 L. Ed. 178:

(4) Another rule is that, where a municipal corporation has authority to contract for street improvements, and is not prohibited by statute from paying for them, and makes a contract to have the work done at the cost of the abutting property, and has authority so to do, but fails and neglects to adopt the proper measures, or to take the proper steps to make the abutting property liable to an assessment for the costs, the corporation is liable to the contractor, although the contract provided that the improvements should be made at the costs of the abutting property. Many of the adjudications of this court in regard to street improvements, and the liability of the cities and towns in their corporate capacity for the costs of the improvements, have been controlled by charter or statutory provisions applying to such corporations at the time of the adjudications, and cause apparent inconsistencies in the adjudications, when not "An unconstitutional act is not a law; it conread in connection with the statutory or char-fers no rights; it imposes no duties; it affords ter provisions which influenced the decisions; no protection; it creates no office; it is in legal but a reference to the following cases will contemplation * as though it had never show that the general principles and rules been passed." above mentioned have been adhered to when the facts of the particular case have brought it within one of the principles above stated: Guthrie v. City of Louisville, 6 B. Mon. 575: Craycraft v. Selvage, 10 Bush, 708; Murphy v. City of Louisville, 9 Bush, 189; Hydes v. Joyes, 4 Bush, 465, 96 Am. Dec. 311; City of Covington v. Dressman, 6 Bush, 210; City of Louisville v. Nevin, 10 Bush, 550, 19 Am. Rep. 78; Caldwell v. Rupert, 10 Bush, 180; Preston v. Roberts, 5 Ky. Law Rep. 57; City of Covington v. Smith's Ex'r, 12 Ky. Law Rep. 141; City of Covington v. Wood, 10 Ky. Law Rep. 1022; City of Louisville v. Hexagon Tile Walk Co., 103 Ky. 552, 45 S. W. 667, 20 Ky. Law Rep. 236; Terrell v. Paducah, 122 Ky. 331, 92 S. W. 310, 28 Ky. Law Rep. 1237, 5 L. R. A. (N. S.) 289; City of Covington v. Noland & Co., 89 S. W. 216, 28 Ky. Law Rep. 314; City of Louisville v. McNaughton, 44 S. W. 380, 19 Ky. Law Rep. 1695; City of Louisville v. Meyer, 32 S. W. 290, 17 Ky. Law Rep. 666; City of Louisville v. Leatherman, 99 Ky. 213, 35 S. W. 625, 18 Ky. Law Rep. 124; City of Louisville v. Bitzer, 115 Ky. 359, 73 S. W. 1115, 24 Ky. Law Rep. 2263, 61 L. R. A. 434; Gleason v. Barnett, 106 Ky. 125, 50 S. W. 67, 20 Ky. Law Rep. 1694; De Board v. Bowling Green, 6 B. Mon. 229; Gosnell v. Louisville, 104 Ky. 212, 46 S. W. 722, 20 Ky. Law Rep. 519; City of Louisville v. Hyatt, 5 B. Mon. 199; Trustees of Belleview v. Hohn, 82 Ky. 1; Kearney v. City of Covington, 1 Metc. 345. The cases cited by appellant are in accord with the principles of the others above named.

Hence the common council was without authority to enact the ordinance, and the ordinance, being void, gave the mayor no authority to enter into the contract for the city. Hence the contractor occupied the posi tion of a volunteer. In Murphy v. City of Louisville, 9 Bush, 189, the ordinance of the city required, before the city could be bound upon a contract for street improvements, that the contract must be signed by the mayor and approved by the board of aldermen and the common council. The contract was signed by the mayor and approved by one of the boards, but not by the other. The failure to have the contract approved by one of the boards, it was admitted, released the abutting property from liability to pay the costs of the street improvements; but it was insisted that, because the assessments failed, the city became liable, but this court, however, held that Murphy did not have any contract with the city, because the contract had not been approved by both of the boards, as the statute required, and hence, having no contract, he was a volunteer, and could not make the city liable. It was furthermore held in that case that a person who dealt with a municipal corporation, about a matter which is provided for by its charter, is bound to see to it that the charter provisions are complied with, and must take notice of what is contained in them, and if he fails to do this he must suffer the consequences. Every person must take notice of the statutes, which now compose the charters of

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