Opinion
No. 529234.
1944-12-7
ROBINSON v. CITY OF SOUTH EUCLID.
Davies & Eshner, of Cleveland, for appellant. Roland A. Baskin, City Sol., of Cleveland, for appellee City of South Euclid.
Action by Bernard C. Robinson against the City of South Euclid for an injunction.
Petition dismissed.
Affirmed by Supreme Court, 146 Ohio St. 627, 67 N.E.2d 327.Davies & Eshner, of Cleveland, for appellant. Roland A. Baskin, City Sol., of Cleveland, for appellee City of South Euclid.
Frank T. Cullitan, Pros. Atty., and Margaret R. Lawrence, both of Cleveland, for appellees John A. Zangerle, Auditor and John J. Boyle, Treasurer of Cuyahoga County.
KRAMER, Judge.
The plaintiff herein purchased this property at tax sale in which bids were received pursuant to the Auditor's printed tax sale notice. This notice stated that the property was for sale subject to the tax and assessments for the year 1939 and thereafter which included reassessments the amount of which was set forth, and subject to all building, zoning and other restrictions existing and affecting the property at the time of the sale. Thereafter the plaintiff received a deposit receipt and certificate of sale which carried these same provisions as to taxes, assessments and restrictions. Thereafter the plaintiff procured to be issued to him a tax deed which contained the same provisions with the additional condition that the grantee assumed and agreed to pay the taxes shown. Thereafter the plaintiff procured a decree of this Court setting forth that the proceeding by which he acquired his deed was regular and according to law, and ordering his title to be registered in his name in the Torrens Title Registry. The title was thereupon so registered.
It is difficult to consider under these facts how the plaintiff can claim that he was not bound by the conditions of the Auditor's sale, or that that sale was illegal, outside of the authority of the Auditor so to sell and therefore void. The is particularly true, when it is considered that the plaintiff does not seek to have the sale set aside, but asks that he be permitted to retain what he received by virtue of the same, and be freed from the burdens of his purchase.
Leaving out of consideration, for the moment, the fact that this property was purchased at tax sale from the State, the facts above enumerated would seem to bring this case substantially within the rule laid down in the Laurelhill Land Co. v. Collister, 43 Ohio App. page 229, 183 N.E. 80. The syllabus of that case is:
‘The owner of Torrensized land may be estopped by deed, contract, or by other conduct, from claiming the benefit or protection afforded by section 8572-56, General Code, which section requires the filing with the county recorder of a notice of leased and registered lands sought to be assessed for improvement by any political subdivision.’
The facts herein differ from that case only in that the plaintiff therein, subsequent to receiving its deed, gave a mortgage which contained the same provisions and exceptions as were contained in the deed. In the instant case the plaintiff received a deed showing, precisely as in the Laurelhill case, the reservation in the grantor of the right of secure improvements and to bind the land, and containing the same covenant,-that plaintiff assumed the assessments and agreed to pay for them. The plaintiff's conduct thereafter in securing a judicial decree confirming his title and securing its registration appears to be conduct at least as strong to complete an estoppel against him as the giving of a mortgage in the Laurelhill Land Company case.
The Laurelhill Land Company decision is not at variance with those cases cited in plaintiff's brief (page 18 et seq.) to the effect that a clause in a deed by which the grantee assumes payment of an incumbrance does not operate as an estoppel to prevent him from contesting the legality of such incumbrances. Both in that case and here we have something more than is contained in any of these cases cited. These cases were, so far as the Court is advised, not cited to the court in the Laurelhill case.
Again, for the moment disregarding the fact that this property was purchased at tax sale, the case appears to fall within the holding of the case of The Shaker Corlett Land Co. v. City of Cleveland, reported in 139 Ohio St., page 536, Syllabus 7, 41 N.E.2d 243, 244:
‘Where an owner of registered land is estopped from claiming that the land was not liable for an assessment to pay the cost of improvements thereon by reason of failure to file notice and lease of assessed lands as required by Section 8572-56, General Code, a purchaser who acquires title to such land with knowledge of the installation of the improvements, the assessments, the certification to the county treasurer and its nonpayment, is not a purchaser in good faith but takes subject to the equity which arises out of the estoppel.’
It is true that there is no direct evidence that the plaintiff herein knew that the improvements had been installed, but the fact that he did know, when he acquired title by having his deed registered must be held to charge him with such knowledge.
The question now is whether the fact that this property was acquired by the plaintiff at a tax sale renders the above authorities inapplicable.
It appears to be the settled law that the purchaser at a tax sale is invested with a new title to the land discharged from all previous liens and incumbrances. Kahle v. Nisley, 74 Ohio St. 328, 78 N.E. 526. It is also admittedly the law that this is not a complete statement of the law, in that the purchaser takes the land subject to restrictions and also subject to an easement for improvements payable in installments to the extent that such installments fall due subsequent to the sale. In Beach v. Thrift Investment Co., Common Pleas No. 496,425, 5 Ohio Supp. 102, it is said:
‘By forfeiture the State does not acquire an undevisable estate in fee simple; after forfeiture the property continues subject to taxation * * * The State cannot dispose of it except for the purpose of satisfying its tax liens, and then only in the specified manner prescribed by law. * * * During the interim between forfeitureand sale the State must be deemed to be in constructive possession of the property and the whole estate therein for the single purpose of enforcing its lien for taxes. Upon the accomplishment of such purpose by the sale of the property in the manner prescribed by the General Assembly, there is conveyed to the purchaser title to the whole estate.’
There seems to be no question that if the property herein had been subject to valid improvement liens payable in installments that such installments as were not due at the time of the sale would survive the sale and be liens upon the land, whether or not it was so stipulated in the Auditor's notice. Columbus Title, Inc., v. Thatcher, 62 Ohio App. 505, 24 N.E.2d 620. The Court can find no authority, nor can it state any principle upon which it could base a finding, that the estoppel which existed against the previous owner of the land to deny a lien would not survive the tax sale as to future installments in the same manner as if such installments were valid liens, nor why the conduct of the plaintiff subsequent to the tax sale would not estop him to deny the validity of the lien as such estoppel was held in the Laurelhill Land Company case.
The plaintiff herein initially contends that the entire reassessment proceedings herein are void because the statutes authorizing such reassessment are unconstitutional. The right of the plaintiff to raise the question of the constitutionality under which the legislation here in question was enacted is sustained in the City of Cuyahoga Falls v. Beck et al., 110 Ohio St. page 82, 143 N.E. 661. The case of Shepard v. Barron, 194 U.S. 553, 24 S.Ct. 737, 48 L.Ed. 1115, being an appeal from the Circuit Court of the United States for the Southern District of Ohio, appears to hold to the contrary. Conceding this right to the plaintiff, it appears that the original assessment herein, so far as anything is presented to the contrary, is constitutional. The fact that the land diminished in value subsequently could not affect that original assessment. The reasoning does not appear to be sound that, if due to the default of the owner in payment, a statute which respreads the assessment and relieves him of his default would be unconstitutional, because he is required to bear the expense so incurred, or because the value of the land at the time of the reassessment would not support an original assessment under the constitutional restrictions.
Refunding bonds have been issued by many of the municipalities in this state and the presumption of constitutionality of the statute appears to be strengthened by the fact that constitutionality has, up to this time, not been questioned. No authority is cited either by case or principle to support plaintiff's contention of unconstitutionality, and the argument presented is not sufficiently convincing to induce this Court to hold that these statutes, so beneficial to owners of land, are unconstitutional.
The remaining claim that reassessment upon land forfeited to the State cannot be made seems to be specifically authorized by statute, and the argument presented again does not seem sufficient to warrant a holding on the part of this Court sustaining a claim to the contrary.
Insofar as equitable principles are applicable herein the plaintiff would have little standing in court. He purchased this property by competitive bidding under specified terms of which he had presumptive knowledge at the time of the sale, and certain knowledge thereof within time to have relinquished the property and permitted it to be resold. He seeks in this action to retain the property acquired by his bid, which he maintains was for the property free from lien, against other bidders whose bids necessarily would be for the property under the terms of the sale. It may be, and from what the Court knows of the value of the property and the liens it seems possible, that there would have been no bids under the terms of the sale. At the same time it also seems reasonably probable that if the property were offered free of lien, the amount of the bids would have been considerably higher than that of the plaintiff herein.
For the reasons above stated the Court finds that the plaintiff is not entitled to the relief sought. Entry will be-‘Petition dismissed; relief denied; plaintiff excepts.’