Curry v. Lybarger

• Decision Date: 08 December 1937
• Docket Number: 26574.
• Citation: 11 N.E.2d 873,133 Ohio St. 55
• Parties: CURRY et al., Board of Com'rs of Cuyahoga County, v. LYBARGER, County Recorder, et al.
• Court: Ohio Supreme Court

11 N.E.2d 873

133 Ohio St. 55

CURRY et al., Board of Com'rs of Cuyahoga County, v. LYBARGER, County Recorder, et al.

No. 26574.

Supreme Court of Ohio

December 8, 1937

Appeal from Court of Appeals, Cuyahoga County.

This action involves the construction and effect of certain provisions of the so-called Torrens Title Act. The case originated in the court of common pleas of Cuyahoga county where issue was made by demurrer to the petition. This proceeding was taken under the provisions of section 8572-79 General Code, which provides for an appeal to the court of common pleas from the refusal or failure of the county recorder to file notice and certification of assessments and enter a memorial thereof upon the certificate of title of the lands affected thereby. The demurrer was sustained by the court of common pleas, and that action was affirmed by the Court of Appeals. Upon motion, the record was certified to this court.

Frank T. Cullitan, Pros. Atty., and Ralph W Edwards, both of Cleveland, for appellants.

Davies & Eshner, Howard R. Hirsch, Edward S. Crudele, Max M. Meyer, Holliday, Grossman & McAfee, and Ford & Kiefer, all of Cleveland, for appellees.

MATTHIAS Judge.

In the consideration of the issue presented, it is only necessary to state that the certification of assessments in question, which the recorder had refused to receive and record, was based upon assessing ordinances or resolutions attempting to levy assessments upon the registered lands described in the petition passed in the years 1926, 1928, and 1929. No notice thereof was filed or presented or attempted to be filed or presented to the county recorder until October 30, 1936. The special assessments against the several premises affected thereby were levied pursuant to proceedings duly had by the Board of County Commissioners of Cuyahoga county to defray the estimated cost and expense of construction of certain water and sewer improvements.

Each of the several tracts of land involved had been duly registered under the law commonly referred to as the Torrens Title Act. This law was originally enacted in 1913 (103 Ohio Laws, p. 914), and is entitled: 'An Act To provide for the settlement, registration, transfer and assurance of land titles and to simplify and facilitate transactions in real estate.'

The only purpose sought to have accomplished by the proposed action of the recorder is the creation of a lien upon the registered lands in question. A vain thing will not be required to be done; hence, the single question presented is whether a lien would be created against such registered lands by action of a county recorder in receiving and filing notice of the passage of legislation levying assessments and noting a memorial thereof upon each of the certificates of title covering the respective premises more than seven years subsequent to the enactment of such legislation.

At the time of the special assessments involved in this action, section 8572-56, General Code, in its material and essential parts, read as follows:

'When * * * an ordinance, resolution or order is passed or made * * * to * * * construct or repair a highway, road, street, sidewalk, drain or sewer, or to make any other public improvement * * * the whole or a portion of the expense of which may be assessed or levied upon real estate, if any registered land or any land included in an application for registration then pending is affected by the act or proceeding, and liable to such assessment * * * the clerk of the board of council passing such ordinance * * * shall file in the recorder's office a notice of the passage or issuance thereof giving a list of the lands assessed, or to be assessed and a memorial thereof shall thereupon be noted by the recorder on the register of each certificate of title for such land. Unless there is filed with the recorder * * * such notice and list of lands, registered lands shall not be liable for such assessments.'

The so-called Torrens Title Law was enacted in 1913 and embraced the above section substantially as there written. There was no amendment of that section until 1933, when a specific limitation upon filing with the recorder was fixed by the following amendment: 'Unless there is filed with the recorder, within ninety days after the passage or issuance of such ordinance, resolution or order, such notice or list of lands, registered lands shall not be liable for such assessments.' Gen.Code, § 8572-56. On April 29, 1937, section 8572-56, General Code, was repealed. At the same time, sections 8572-25 and 8572-89, General Code, were so amended as to include taxes and assessment liens within the exceptions not covered by a Torrens certificate.

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