Columbus Titles, Inc. v. Thatcher (62 Ohio App. 505, 1939)

Geiger, J.

The plaintiff below filed its petition alleging that, except as to a single lot, it is the owner and in actual possession of certain real estate situated in Franklin county, Ohio; that it acquired its title to all of said real estate from the state of Ohio, by deeds executed by the auditor of Franklin county, pursuant to the provisions of Section 5755, General Code. These deeds were made during the months of May and June, 1937.

It is alleged that there are being carried by the defendants on the tax duplicate and upon the books of the auditor and treasurer of Franklin county, Ohio, as due and unpaid and as a lien on the premises, charges for taxes for the year 1936; charges for special assessments alleged to have been reassessed by the city of Columbus and charges for special assessments levied prior to the proceedings by which said real estate was forfeited to the state of Ohio for nonpayment of taxes and assessments, and not reassessed.

The petition sets out for each parcel of land the amount of each item of taxes, reassessments and assessments.

Plaintiff prays that defendants be enjoined from attempting to collect and from carrying on the tax books any of the aforesaid charges and that the claims be adjudged null and void and that the plaintiff’s title be quieted.

After a demurrer to this petition was filed and overruled a joint answer of the two defendants was filed admitting certain matters, among them that the plaintiff acquired title to the parcels of land described in the way and manner set forth in the petition, and admitting that they are carrying on the records of their respective offices the properties described for the purpose of taxation and that they claim as taxes the amount set out under each parcel in the plaintiff’s petition. They allege that the amount of taxes, assessments and reassessments of which the plaintiff complains, were not taxes, assessments and reassessments in arrears within the purview of the statute at the time of the forfeiture sale.

A reply was filed denying the allegations of the answer.

Trial was had and resulted in a judgment in favor of defendants. Motion for new trial was overruled and notice of appeal was given on questions of law and fact.

There is no dispute as to the facts. The questions presented for our determination are:

(1) When real estate is forfeited to the state for nonpayment of taxes and assessments for previous years, does the state’s lien for taxes for the year of forfeiture attach and does it survive a sale by the state through the auditor under the provisions of Section 5755, General Code?

(2) Does the lien created through special assessments by a city for deferred installments, not yet due at the time of such forfeiture, survive the sale and remain a charge against the property?

(3) In the case of installments of a special assessment past due and unpaid prior to the time of the forfeiture and sale, but with reference to which reassessments have been had prior to the forfeiture, does such reassessment constitute a new lien and if so does this survive the forfeiture and sale?

The pleadings present to the court questions which must be decided in conformity to the statutory provisions in force controlling such sales.

Most of these statutes may be found in Chapter 14, “Delinquent Lands,” beginning at Section 5704, and extending to Section 5727, General Code, and Chapter 15, beginning at Section 5744, and continuing to Section 5773, General Code. Without attempting to segregate the provisions under their appropriate statutory numbers we will briefly state their general tenor.

Immediately after the August settlement the auditor shall certify a list of all delinquent lands in his county. Such list shall contain the amount of taxes, assessments and penalty thereon due and, unpaid, together with the amount of interest to the date of such settlement. Interest at the rate of 8 per cent on the amount of taxes and assessments due and unpaid, shall be charged from the date of such settlement. Delinquent lands shall mean all lands upon which taxes, assessments, and penalties, or either, remains unpaid at two consecutive semi-annual tax settlements. The state shall have the first and best lien on the lands described in the list for the amount of taxes, assessments and penalties and accrued interest charged prior to the delivery of such list. If the taxes have not been paid for three consecutive years after certification the state shall have the right to institute foreclosure proceedings thereon.

The auditor shall enter on the tax list the word ‘ ‘ delinquent” and such entry shall be deemed to be notice to purchasers acquiring any right or interest in the land of the prior right and lien of the state. If such lands have been transferred the entry “delinquent” shall follow the land unless the taxes together with interest due have been paid. No proceedings in foreclosure shall be instituted on delinquent lands unless the taxes, assessments, penalties and interest have not been paid for three consecutive years. At the expiration of three years the auditor shall make delinquent land tax certificates of each delinquent tract of land upon which the taxes, assessments, penalties and interest have not been paid, describing the amount of taxes, assessments, penalties and interest thereon due and unpaid. It is the duty of the prosecuting attorney upon delivery of the delinquent land tax certificate to institute a proceeding to foreclose the lien of the state within nine months thereafter unless the taxes and charges are sooner paid. A finding shall be entered in the amount of the taxes as- are found due and unpaid, and from the proceeds of the sale costs shall be first paid, next the amount found due for taxes, assessments, penalties, interest and charges, next the amount of any taxes and assessments accruing after the entry of the finding and before sale, all of which shall be deemed satisfied though the amount applicable be deficient, and the balance shall be distributed according to law. No tax certificate shall be invalid for reasons named if the taxes, assessments, penalties and interest set forth in said certificate were due and unpaid at that time. All delinquent land upon which taxes have become delinquent may be redeemed at any time by tendering to tbe county treasurer the amount due