74 N.E.2d 373
No. 31096Supreme Court of Ohio.
Decided July 23, 1947.
Taxation — Forfeited lands — Sale by county auditor valid — Time for preparation of delinquent tax list — Time for conducting sale — Sections 5750, 5751 and 5752, General Code.
CERTIFIED by the Court of Appeals for Cuyahoga county.
The plaintiff, Joseph Delmond, an appellee herein, on July 25, 1946, commenced an action to quiet title as to any and all claims of, among others, the appellant upon certain real estate purchased by the plaintiff from the auditor of Cuyahoga county at a forfeited land sale.
By an amended petition, the city of South Euclid, appellant herein, was made a party defendant. The city’s answer, which is also in the nature of a cross-petition, asserted the lien of special assessments on the property and claimed the sale to be void.
The defendants John A. Zangerle, county auditor, and John J. Boyle, county treasurer, appellees herein, by way of reply to the answer of the city, asserted that the defense of the city was not set up within one year after the deed to the property was filed for record, as required by Section 5762-1, General Code.
The defendant The Board Investors Company, the former owner of the land which was sold at the forfeited land sale, was in default of answer and appearance, and at no time made any claim in respect of any interest in the forfeited land.
The Common Pleas Court upon hearing found in substance by journal entry filed January 20, 1947, that all the proceedings resulting in the forfeiture of the land to the state of Ohio on June 13, 1945, were in all
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respects in compliance with the statutes and particularly in compliance with the provisions of Sections 5705, 5718, 5718-1, 5718- a, 5718- b, 5718- c and 5718-4, General Code; that the provisions of the General Code, relating to the sale of forfeited lands, are directory and not mandatory; that all the provisions of the General Code, relating to the sale of forfeited lands, had been substantially complied with by the auditor, whereby the plaintiff had become vested of a good and indefeasible title in fee simple in and to the lands described; that the defendant The Board Investors Company and the defendant city of South Euclid by virtue of the forfeiture sale had become divested of any interest in the lands; that the defendant city of South Euclid has no valid claim against the land for past due taxes and assessments or for future assessments reassessed against the lands on January 16, 1940; and that the assessments for street lighting are still a valid claim charged against the lots from and after July 27, 1945.
On appeal on questions of law and fact by the city of South Euclid, the Court of Appeals rendered a decree substantially the same as that of the Court of Common Pleas, and ordered that the case be certified to the Supreme Court of Ohio on the ground of conflict with the judgment of the Court of Appeals of Hamilton county in cause No. 6758 on the docket of such court, entitled Bauman v. Guckenberger, Aud. The instant case was tried in the Court of Appeals upon an agreed stipulation of facts as follows:
“(1) That The Board Investors Company, the owner of the property described in the petition at the time said property was forfeited to the state as hereinafter set forth, is an Ohio corporation, whose charter has been cancelled by the state of Ohio;
“(2) That John A. Zangerle and John J. Boyle are,
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respectively, the auditor and treasurer of Cuyahoga county, Ohio;
“(3) That the defendant, the city of South Euclid, is a municipal corporation duly organized and existing under and pursuant to the laws of Ohio.
“(4) That the defendant, the city of South Euclid, prior to the year 1940, levied against the property described in the petition special assessments to finance the cost of street, sewer district and other improvements, and bonds were issued in anticipation of the collection of said assessments; that said special assessments were made payable in annual installments and were certified to the county auditor for collection on the tax duplicate as other taxes are collected; that certain installments of said assessments were not paid; that on January 16, 1940, under and pursuant to Sections 2293- p to 2293- u, General Code, inclusive, the city of South Euclid reassessed the upaid portion of all the special assessments theretofore levied by it against the property described in the petition; that said reassessments were made payable in twenty-eight annual installments and were certified to the county auditor for collection on the tax duplicate as other taxes are collected, beginning with the year 1939 tax duplicate.
“(5) That the property described in the petition, which comprises various sublots, became delinquent because of the nonpayment of taxes, assessments, and reassessments which had been levied against it, and was forfeited to the state of Ohio on June 13, 1945, after proceedings were had by the Common Pleas Court under Sections 5705, 5718-1, 5718- a, 5718- b and 5718- c, 5718-4 of the General Code, and also after said property had been omitted from foreclosure proceedings by the county board of revision;
“(6) That after the forfeiture of the property described
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in the petition on June 13, 1945, the county auditor caused to be published in English in ‘The South Euclid Citizen’ and the ‘Berea News,’ two newspapers of general circulation in the county, on the 15th and 22nd days of June, 1945, a notice that, said described property and other forfeited lands would be sold at public auction if the due and unpaid taxes, assessments, penalties, interests and costs charged against said forfeited property were not paid before the date fixed in said notice for the tax sale of said forfeited property; that a copy of said notice of sale is hereto attached, marked ‘Exhibit A’ and made a part hereof;
“(7) That the taxes, assessments, penalties, interests and costs charged against the property described in the petition not having been paid, the said described property was offered for sale to the public at public auction by the county auditor, pursuant to the aforesaid tax-sale notice, a copy of which notice is hereto attached, marked ‘Exhibit A’ and made a part hereof, and was sold to the plaintiff on the 27th day of July, 1945, by the county auditor; that the plaintiff paid to the county auditor the full amount of his bid, in cash, plus $1.25 for each parcel purchased, and received from said county auditor the required statutory certificates for each parcel so purchased; that deeds for the sublots comprising the said described property were subsequently issued and delivered to the plaintiff by the county auditor; and that said deeds were recorded on September 6, 1945, in the deed records of Cuyahoga county, Ohio;
“(8) That the county auditor did not between the first Monday of November, 1945, and the first day of January, 1946, for the purpose of public sale, make any list of the forfeited lands and lots in the county which included the forfeited property described in the
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petition, nor did he make any list whatsoever of the forfeited lots and lands of the county between said dates for the purpose of public sale;
“(9) That the county auditor, having sold the property described in the petition at tax sale as aforesaid, did not subsequent to January 15, 1946, cause notice of the tax sale of said property to be advertised once a week for two consecutive weeks prior to the first day of July, 1946, in two newspapers as provided in Section 5704, General Code, nor did he sell the said described property to the plaintiff or other persons subsequent to January 15, 1946.”
The case is in this court pursuant to the certification by the Court of Appeals for Cuyahoga county.
Mr. E.A. Plazer, for, appellee Joseph Delmond.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Ralph W. Edwards, for appellees county auditor and county treasurer.
Mr. Roland A. Baskin, for appellant.
BY THE COURT.
The judgment of the Court of Appeals is affirmed on the authority of the case of Bauman v. Guckenberger, Aud., ante, 292, this day decided.
Judgment affirmed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.
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