Taylor v. Monroe
| Decision Date | 19 November 1952 |
| Docket Number | No. 33029,33029 |
| Citation | 109 N.E.2d 271,158 Ohio St. 266 |
| Parties | , 49 O.O. 118 TAYLOR v. MONROE et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Where land registered under the Torrens Act is duly forfeited to the state for delinquent taxes and assessments and sold by the state and where the former owner of such land has not at any time questioned the regularity of such forfeiture or sale or the right of the purchaser at the tax sale to a certificate of registration for such land, such former owner is not barred from contending that the liens for such assessments were void when such former owner institutes legal proceedings under Section 5757, General Code, to recover the amount by which the sales price of such forfeited land exceeds the sum of the costs of sale, the delinquent taxes and the interest and penalties thereon.
2. Neither the judgment of the Common Pleas Court, rendered pursuant to Section 5718-1c, Generalf Code, and ordering such land forfeited to the state, nor the judgment of the court, rendered pursuant to Section 8572-58, General Code, and ordering issuance of a certificate of title under the Torrens Act to the purchaser of such land at the tax sale, will necessarily bar such former owner, who has taken no action in such court proceedings, from making such a contention in such proceedings under Section 5757, General Code.
3. In an action upon a different cause of action from that involved in a prior action between the same parties, the judgment in such prior action will operate as an adjudication between the parties only as to the points or questions actually litigated and determined or which must necessarily have been determined in order to support that judgment, and not as to other matters which might have been litigated and determined.
Plaintiff was the owner of a certificate of registered land issued under the Torrens Act, Section 8572-1 et seq., General Code. In February 1950, upon application of the county board of revision, the Common Pleas Court entered an order forfeiting to the state for unpaid taxes, assessments, penalties and interest certain lands, including the land covered by the foregoing certificate. Pursuant to that order and the appropriate statutes, the county auditor offered that land for sale at public auction and duly sold it to the highest bidder for $2,000.
At the time of its forfeiture to the state and its sale, that land had been delinquent in general taxes for a substantial number of years. Also, the tax duplicate indicated that there were delinquent special assessments against that land which had been certified to the county treasurer for collection. However, by reason of failure to comply with Section 8572-56, General Code, as in force prior to its repeal and at the time of the levy of said special assessments, the liens for such assessments were void. Gundersen v. City of South Euclid, 157 Ohio St. 437, 105 N.E.2d 863.
The foregoing facts are alleged in plaintiff's petition in which he prays for recovery of the amount by which the $2,100, for which his land was sold, exceeded the amount appearing due for delinquent general taxes, penalties and interest thereon and the costs of sale.
The Court of Appeals, 109 N.E.2d 673, reversed the judgment of the Common Pleas Court sustaining a demurrer to this petition.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.
Frank T. Cullitan, Pros. Atty, George W. Leddon and A. M. Braun, Cleveland, for appellants.
James C. Maher, Cleveland, for appellee.
It is the contention of defendants that plaintiff is entitled only to the amount by which the $2,100 selling price of his land exceeded the amount represented by the delinquent general taxes and special assessments certified to the county treasurer for collection, the penalties and interest on those taxes and assessments and the costs of sale. The amount in controversy, therefore, is the amount of the special assessments and the penalties and interest thereon.
Plaintiff bases his claim on Section 5757, General Code, which reads:
The contentions of defendants are that, even though the liens for such special assessments were void by reason of failure to comply with Section 8572-56, General Code, as in force prior to its repeal in 1937 and at the time of their levy, both the judgment of the Common Pleas Court, rendered pursuant to Section 5718-1c, General Code, and ordering plaintiff's land forfeited to the state, and the judgment of the court, rendered pursuant to Section 8572-58, General Code, and ordering issuance of a certificate of title under the Torrens Act to the purchaser at the tax sale, barred plaintiff from asserting that the liens for the special assessments were void.
Plaintiff argues that the recent decision rendered by this court in the Gundersen case necessitates a rejection of those contentions of defendants. However, since no such contentions were considered in either the syllabus, the majority opinion or the dissenting opinion in the Gundersen case, we believe it appropriate to consider these contentions made by defendants in the instant case.
The soundness of defendants' position depends upon the nature of the court proceedings provided for in Sections 5718-1a to 5718-1c, inclusive General Code, and of those provided for in Section 8572-58, General Code, the judgments rendered in those proceedings, and the activity or inactivity of the plaintiff in those proceedings.
Section 5718, General Code, provides that, at the expiration of two years after certification of lands as delinquent, 'the county auditor shall make * * * a certificate, to be known as a delinquent land tax certificate of each delinquent tract of land * * *.' Provision is then made for tax foreclosures with respect to the land covered by such certificates. See Sections 5718-3, 5718-4 and 5719, General Code.
However, Section 5718-1, General Code, provides that, before making such delinquent land tax certificates, 'the county auditor shall submit the list of lands on the delinquent list and subject to foreclosure to the county board of revision, and if, in its judgment and discretion, such board is of the opinion that such list contains property or properties so certified which will not bring upon a sale a sufficient amount of money to pay the total amount charged against it on the tax duplicate, together with the costs of foreclosure, such board may order the same to be omitted from the foreclosure proceedings hereinafter provided; and as to such lands so ordered to be omitted, no delinquent land tax certificate shall be made.' That section also provides for 'a list of the lands so omitted.'
Section 5718-1a, General Code, provides for the filing of an application in the Common Pleas Court on behalf of the board of revision with respect to such 'omitted lands,' reciting 'the action taken by such board with respect to such lands' and praying 'for an order fixing a day for the hearing of objections to the action of such board and, after such hearing, an order confirming the action of such board and forfeiting such lands to the state of Ohio.'
Section 5718-1b, General Code, provides for publication of a notice of 'the hearing of objections to the action of the board of revision in making such list of omitted lands'. Under the provisions of this section, this publication is to contain a 'list of such omitted lands' and 'the names of the owners, as found on the auditor's duplicate * * *, a description of the property as it appears on the tax list...
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