
    Case 100 — ACTION BY MICHAEL J. LAWLER & OTHERS ' AGAINST MARY T. MOXLEY & OTHERS TO ENFORCE LIENS FOR STREET IMPROVEMENTS.
    Moxley, &c v. Lawler, &c.
    Appeal from Jefferson Circnit Court (Common Pleas Branch, 1st Division.)
    Shackelford Miller, Judge.
    Judgment for Plaintiffs. Defendants appeal.
    Reversed.
    Street Imporvements — Lien on Abutting Lots — Sale by Original Owner — Release of one by Limitation — Apportionment as to Other Vendees — Liability of Original Owner — In an action by the contractor to enforce a lien on three lots for street improvement, which at the time the work was done, were all owned by D. M., but who had sold one lot to each of three purchasers, in which action the original owner, and two of his vendees were made parties- defendant, and later, by an amended petition the other vendee was made a party, who successfully pleaded the five years statute of limitation as to the lien on her lot, Held, that as one of the lots was released from the lien by limitation, the other two were liable for the whole sum, in proportipn to the number of square feet contained in each lot, respectively, and that they should have judgment over against their vendor, the original owner,for whatever sum they were each compelled to pay to relieve their lots of the lien. ■
    GARDNER & MOXLEY, for appellants.
    1. This case should be reversed because, the statute of limitation has been disregarded as if it did not exist.
    2. One of the defendants is required to pay the apportionment of three others in addition to her own.
    3. The plaintiff is allowed to recover what the pleadings show does not belong to him, but to another, and that other barred by limitation.
    4. The plea of limitation as to part of the property, and one of the defendants, is not denied, and yet judgment goes as to her and as to the property.
    
      5. Then to make the injustice more glaring the entire warrant, barred and unbarred, and the share of her who has clearly escaped is by the judgment to be made out of one defendant without any contribution among those others equally liable.
    6. Suit was brought within five years as to certain defendants and certain property.
    7. An amended petition was filed after five years making other defendants and other property, and judgment is awarded making one of the first defendants pay the full debt without excluding the barred portion, or requiring contribution among those really liable, and requiring her property to be first sold for the entire debt.
    AUTHORITIES CITED.
    Stergen v. Preston, 89 Ky., 624; Dudley v. Price’s Admr., 49 Ky., 88; Stone, &c. v. Comixlly, 58 Ky., 656; Hawes v. Orr, 73 Ky., 427; Dorres v. Gallagher, 27 Ky., L. R. 1001; Langan v. Bitzer, 26 Ky.. L. R. 579; Wagner v. Cash 24 Ky., L. R. 1402; City of Louisville v. Tyler, 23 Ky., L. R. 828; Caldwell v. Rupert 73 Ky., 182; Quisenberry v. Artes, 1 Duv. 20; Lytle v. Lytle, 2 Met. 128; Preston v. Roberts, 12 Bush, 584.
    WILLIAM W. CRAWPORD, for appellees.
    POINTS AND AUTHORITIES.
    1. Where a defendant fails to controvert a cross-petition, or resist relief sought by it, he cannot complain for the first time in the Court ol Appeals of the judgment granting same.
    2. Where an assignor or assignee of an instrument disclaims any interest therein by a pleading filed in the cause, the issue of “real party in interest” is eliminated. (Gladstone Baptist Church V. Scott, 25 K. L. R. 239.)
    3. "Where the instrument sued on is filed with the petition a prima facie case of ownership is made out, and the issue of “real party in interest” is eliminated in the absence of proof showing that plaintiff is not the real owner. (Gill v. Johnson, 1 Mee. 651,)
    4. The only testimony in the case on the question of ownership of the warrant shows that appellees were the real owners. (Crowder’s deposition.)
    5. Where an amended petition sets up no new cause of action, the date of the filing of the original petition should be used in computing the running of the statute of limitation. (Joyes v. Hamilton, 10 Bush, 544.)
    6. The “square foot rule” of apportioning the cost of municipal improvements is merely a legislative basis of approximate benefit and does not effect tbe lien after its creation. (Kentucky Statutes, Sec. 2833; Dillon on Blunicipal Corporations, Sec. 752; Judson on Taxation, Secs. 363 and 363; Broadway, &c., v. BIcAtee, 8 Bush, 518; Barfield v. Gleason, 23 K. L. R. 132.)
    7. Where no mode of procedure is specified by the Legislature in a given case,, the rules applicable in other cases to enforce liens apply. (Act of 1891, Sec. 7, p. 324, Indiana Statutes; Cray-craft v. Selvage, 10 Bush, 710; Neenn v. Smith, 50 Bio., 525; Burroughs on Taxation, pages 448 and 449.)
    8. Where the entire lot is “in lien’’ the court will only direct the sale of enough to satisfy the judgment. (Ducker & Jones v. Gray, 3 J. J. BI., 162.)
    9. The owner of land cannot affect the lien of an assessment by a subsequent division of his lot. (Dougherty v. Bliller, 36 Cal. 83; Desty 'on Taxation, p. 1319.)
    10. A plea personal to one defendant cannot relieve another, jointly bound, or abate recovery againt him to the extent of the pro rata amount of which the person escaping was liable as between the defendants, themselves. (Guff’s Admr. v. Alves & Co., 10 K! L. R. 590; Robinson v. Lehman, 72 Ala., 471.
    11. No re-apportionment can be had unless it is pleaded and proved that a different method of apportionment would be beneficial to the defendant. (Snyder v. B. A. P. C. 24 K. L. R. 2348; BIcHom-y v. Selvage, 99 Ky., 235; Barret v. Artificial Stone Co., 21 K. L. R., g31; Chawk v. Beville, 21 K. L. R., 1769.)
    12. In the case at bar, the method of apportionment was correct, and should be sustained. (Dumesnil v. Shanks, 97 Ky., 361 and 362; Cooper v. Nevin, 90 Ky., 85; Bitzer v. O’Bryan, 21 K. L. R., 1307.)
   Opinion by

Judge Nunn

Reversing.

In the year 1897 Burnett avenue, in the city of Louisville, between Brook and First streets, was improved by grading, curbing and paving with vitrified brick and block pavement. Delozier Mosley, one of the appellants, ewned three lots on the south side of Burnett avenue between First and Brook streets, and his property was charged with its proportion of the cost of this improvement, and in that year an apportionment warrant was issued against his lots for this improvement amounting to $187 and he never paid any part thereof. In the month of February, 1898, Moxley. sold one of the lots to a Mrs. Potter, the remote vendor of the appellant Mrs. O’Conner Morris. In October of that year he sold another lot to the appellant Mrs. Browning. In the year 1901 he sold the remaining lot to the appellant Mary T. Moxley. In the month of November, 1902, the appellees, the contractors who made the improvements referred to, instituted this action for the purpose of enforcing their lien on the property for the sum stated. They made Mrs. Morris, Mary T. Moxley, and Delozier Moxley defendants. In describing the property in the petition the appellees failed to include the lot owned by Mrs. Browning, and she was not made a defendant. After-wards the appellees filed an amended petition making her a defendant, describing’ her lot, and sought to enforce their lien upon it also. She by answer interposed the plea of the statute of limitation of five years. Appellees concede that her plea is good and that they cannot enforce their lien against her lot. See Kirwin v. Nevin, 111 Ky. 682, 64 S. W. 647, 23 Ky. Law Rep. page 950; Voris’ Ex’r, etc., v. Gallaher, 87 S. W. 775, 27 Ky. Law Rep. page 1001. The appellant Mrs. Morris made her answer a cross-petition against her co-defendants, and alleged that Delozier Moxley had conveyed the lot to her with a clause of general warranty, and that he be required to defend the action, and that, if she was compelled to pay any part of the claim of appellees, she be granted a judgment against him for the amount thereof. She also asked that lot No. 2, owned by Mary T. Moxley, first be sold to pay appellees’ claim. She did not state any reason why this should be done. Delozier Moxley answered, and alleged that the lot owned by Mrs. Browning was relieved from the payment of any part of the appellees’ claim by reason of the statute of limitation and the appellees, had no right to enforce their lien for the whole sum due them as against the other two lots owned by Mrs. Morris and Mrs. Moxley. He also alleged that the lien of appellees was invalid, and not enforceable for the reason that it was improperly assessed. The court tried the case, and, in substance, rendered the following judgment. Appellees were given a lien upon all three of the lots, and directed the commissioner of the court to sell lot No. 2, owned by Mary T. Moxley, first; lot No-. 3, owned by Mrs. Browning, second; and lot No. 4, owned by Mrs. Morris, third; and directed that lot No. 2 be sold free o.f liens of Delozier Moxley. The reason for this last provision in the judgment was that it was stated in the petition of appellees that Moxley was claiming some character of lien upon lot No. 2, and he was asked to answer, and set up his lien if any he had. This he failed to do.

We are at a loss to understand why the court directed the sale of lot No. 2, first, to satisfy the judgment ; 3, second; 4, third. Even if No. 3, the lot owned by Mrs. Browning had not been relieved by the statutory bar there can be no possible reason why that lot should have been compelled to pay the judgment rather than lot No. 4 owned by Mrs. Morris. All three were purchased from Delozier Moxley when this lien existed upon the lots, and their property should have been compelled'to satisfy the lien in proportion to the number of square feet contained in their respective lots.

It is contended by appellants that the claim of appellees should be reduced by the amount that was chargeable against Mrs. Browning’s lot. In .our opinion this position cannot be maintained for the reason that appellees’ lien was upon each and all of the lots. They say it was by appellees’ laches in failing to sue Mrs Browning within five years, which resulted in her property being released from the claim, and, therefore, they, appellees, should suffer the loss, but thej overlook the fact that they could have answered within five years, and by proper proceedings brought Mrs. Browning before the court, in the action, and stopped the running of the statute, and saved themselves from loss. In our opinion the lower court should have adjudged that the property of Mrs. Browning was relieved of the lien, and that the lots of Mrs. Morris and Mrs. Moxley should have been subjected to the payment of the claim, but the court should have first ascertained whether or not Delozier Moxley held any liens upon the lots; if so subjected lot or lots upon which the lien existed to the extent of the lien claims; and in any event the court should render judgment over against Delozier Moxley, on account of the warranty deeds, in favor of Mrs. Moxley and Mrs. Morris for whatever amount they may be compelled to pay to relieve their property of this lien.

For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent heerwith.

Petition for rehearing by appellees overruled.  