McCollum v. Uhl

• Decision Date: 01 April 1891
• Docket Number: 14,632
• Citation: 27 N.E. 152,128 Ind. 304
• Parties: McCollum et al. v. Uhl
• Court: Indiana Supreme Court

27 N.E. 152

128 Ind. 304

McCollum et al. v. Uhl

No. 14,632

Supreme Court of Indiana

April 1, 1891

Reported at: 128 Ind. 304 at 309.

From the White Circuit Court.

Judgment reversed.

Robert Gregory, for appellants.

E. B Sellers and W. E. Uhl, for appellee.

OPINION

McBride, J.

This was a suit by appellee against appellant, McCollum, and Robert Breckinridge, treasurer of White county, to enjoin the collection of a ditch assessment.

The facts, as alleged in the complaint, are substantially as follows:

On the 5th day of March, 1883, the then treasurer of White county sold the west half of the northwest quarter of section twenty-nine (29), township twenty-seven (27) north, of range three (3) west, in said county, for taxes which had been assessed against the land from the year 1874 to 1882, inclusive, and were then delinquent. Martin L. Bundy was the purchaser, paying $ 126.81.

The land was not redeemed, and on the 10th day of August, 1885, the auditor of the county made Bundy a deed.

On the 1st day of October, 1885, Bundy commenced an action in the White Circuit Court to quiet his title to the land. In this he failed, and the court, instead of quieting his title, foreclosed his lien for taxes, and the land was sold by the sheriff on the 20th day of February, 1886, under the decree of foreclosure thus rendered, for $ 308, appellee being the purchaser and receiving a sheriff's deed. He claims title under this deed.

On the 3d day of December, 1878, a petition was filed in the auditor's office of White county asking the establishment by the board of commissioners of said county of a ditch affecting the lands in controversy. On the 3d day of March, 1879, said board appointed viewers, who filed their report with the auditor on the 26th day of April, 1879, and on the 5th day of June, 1879, said board ordered that said ditch be established. The viewers, by their report, set apart and apportioned to said land, together with the east half of the northeast quarter of section thirty (30), a share of the work of constructing said ditch, and estimated the cost of the same at $ 261.62, and also apportioned to said two tracts together $ 14.50 of the costs and expenses of establishing the ditch. On the 23d day of June, 1886, the auditor of the county sold the contract for constructing that portion of the ditch apportioned to said two tracts of land to appellant George McCollum, who did the work, and received from the auditor a certificate showing the work completed, and that there was due to him $ 315 for the same.

This amount the auditor charged against the land on the tax duplicate, and when this suit was commenced the county treasurer was taking steps to collect it by a sale of the land. The prayer of the complaint asks that appellee's title be quieted as against the assessment, and that the treasurer be enjoined from attempting to enforce collection by sale of the land.

Appellee bases his contention upon two grounds. He says:

"1. The owner of the land had no notice of the ditch proceedings. They are therefore a nullity as to him, and the assessment against his land is invalid, and constitutes no lien."

"2. The lien of the State for taxes is paramount, and the sale and deed under the decree foreclosing the tax lien operated to extinguish the lien of the ditch assessment, even if it was valid in the first instance."

The averments of the complaint relative to notice of the ditch proceeding are as follows:

"And the plaintiff says that the then owner of said land (as shown by the records in the recorder's office of said county) did not sign said petition, nor was he named therein, and that said auditor never gave him any notice of the pendency and prayer of said petition, or of the time set for the hearing thereof by posting, publication in any newspaper, or otherwise. And said auditor did not at any time before the hearing of said petition by said board, and the establishment by it of said ditch, post or publish any notice in any newspaper of the pendency and prayer of said petition, and the time set for the hearing thereof in which the said owner of said real estate was named. And that said board did not find or adjudge in any order made by it in said proceedings that said owner of said lands had received any notice whatever of the pendency of said petition, nor of the time set for the hearing of the same."

It is also averred that the report of the viewers was not recorded.

The statute under which the order was made for the establishment of the ditch in question required the auditor to give notice and prescribed that the notice should contain "the names of the owners of the lands" that would be affected thereby. 1 R. S. 1876, p. 428, sec. 2. An order made without notice would be void. If notice was given as to some but not as to all the owners of the lands affected, those...