Brennan v. United States

139 Ct. Cl. 433 | Ct. Cl. | 1957

Lead Opinion

Whitakee, Judge,

delivered the opinion of the court:

Plaintiff sues to recover taxes assessed by Cuyahoga County, Ohio, against two parcels of land in said county, which parcels, together with eight others, were condemned by the United States on April 22,1942, for a housing project known as Lake Shore Village. Defendant pleads the statute of limitations.

The petition for condemnation was filed April 22, 1942. It sought to condemn “the fee simple absolute discharged of all liens, encumbrances, charges, claims, restrictions, and covenants whatsoever.” At the same time, defendant filed a declaration of taking of “the full fee simple title.” Coincident with the filing of the declaration of taking, defendant paid into the registry of the court its estimate of just compensation.

On the following day the court entered a decree vesting the fee simple title in the United States. The decree was recorded in the land records of Cuyahoga County on May 4, 1942.

Defendant went into possession shortly after the filing of the declaration of taking. The project was completed in June 1944.

Plaintiff’s petition was filed April 13, 1953, nearly eleven years after the taking. It is barred by the statute of limitations.

Upon the entry of the decree of the District Court on April 23,1942, fee simple title to the land was vested in the United States. Thereupon, all, who prior thereto had any sort of title to the land or lien upon it, were divested of their title or lien, and there was substituted therefor an obligation on the United States to pay them just compensation for their interests.

Irrespective of the proper forum in which to assert such a claim, it is obvious that it must be asserted within six years from the date of the entry of the decree vesting title in the United States. It was then that plaintiff’s claim accrued. The United States has consented to suit against it only on condition that it be brought within six years from the time the action accrues. This suit, having been brought more than six years after plaintiff’s action accrued, is barred, and we have no jurisdiction to consider it.

Plaintiff says the County was not made a party to the condemnation proceedings in the District Court and, therefore, that it is not bound by them. Even if we concede this — which we do not — still, plaintiff had to assert its claim in some forum within six years from the time its interest in the property was taken. This it did not do.

What happened in the condemnation proceedings is beside the point. The point is, does this court have jurisdiction? We do not have, because plaintiff’s claim was not -filed here within six years from the time it arose.

As a matter of fact, plaintiff’s remedy was in the District Court. Upon the vesting of title in the United States by decree of the District Court, that court had jurisdiction to determine just compensation, and jurisdiction to determine to whom it should be distributed. Every one claiming any interest in the property and who had notice of the proceedings were required to appear and assert their claims. It is admitted that the County had actual knowledge of the proceedings. It was obliged to have had. It was in that forum that it should have asserted its claim. Had it done so, that court undoubtedly would have protected its rights.

Instead, it relied upon some sort of alleged informal understanding it had with the Special Assistant United States Attorney, which, it says, was overlooked when disbursement of the funds were made. However that may be, that court entered a decree determining just compensation for the property, and the United States has paid into court the amount determined. That payment fully discharged the United States of its obligation, at least as to all claims not asserted within six years of the taking.

Plaintiff’s petition will be dismissed.

It is so ordered.

Laramore, Judge, and Madden, Judge, concur.

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Dissenting Opinion

Jones, Chief Judge,

dissenting:

To deny recovery in this case is unthinkable. Such action would directly violate the Fifth Amendment in two respects. It would deprive plaintiff of' property without due process of law, and it would involve the taking of private property without just compensation.

That can’t be done against an individual, much less against a State.

The defendant admits that neither the State, county, nor any of their officers or agents were made parties to the proceeding. How can they be bound ?

The defendant says that some of the State or county officers knew about the proceeding. Are we to have citation by rumor or by the uncertain word of the village gossip ? There are some of the forms of procedure that are vital and cannot be supplied by the conflicts and uncertainties of oral testimony.

These taxes were a first lien on the land. As was stated in Monroe v. Doe, 7 Ohio 262, 265:

* * * The state has a lien upon all land not exempt from taxation, which is calculated to be perpetual and which cannot be affected by any sale or transfer * * *. It can be removed in no other way than by payment of all taxes, penalties and interest due on the land.

In volume 24 of the original edition of Ohio Jurisprudence, at p. 100, is found the following language:

It is a'fundamental proposition that persons having rights in land cannot be affected by a judgment or decree taking such land unless they are parties to the proceedings. . [Citing Meyers, Fall & Collins, et al. v. Hewitt, 16 Ohio 449.]

As in practically all States, a tax lien is a first lien and is superior to all other liens.

We quote from 2 lewis eminent domain § 524 (3d Ed., 1909):

In Nebraska it has been held that a tax lien in favor of the State was not divested by a condemnation for railroad purposes * * * lien holders are owners within the statute and * * * must be made parties and * * * to divest their interest. [Citing State v. Mo. Pac. Ry. Co., 75 Neb. 4, 105 N. W. 983.] * * * In any case the lien would undoubtedly follow the fund and could be enforced against the fund * * *. [Citing In re Sleeper, 62 N. J. Eq. 67, 49 Atl. 549.]

We quote from section 538 of the same authority :

If a necessary party is omitted, the proceedings will be nugatory as to such party. But as a general rule such an omission does not vitiate the proceedings as to those who areparties, nor can the latter complain of such omission. [Citing cases.]

The author then states the general principles gleaned from a review of a great many eminent domain cases. These in-elude, inter alia, that the Fifth Amendment should be liberally construed for the protection of private rights; that the word property includes every valuable interest which a person can have in or appurtenant to land; and that due process of law requires that the owner of any such right or interest should have a reasonable opportunity to be heard on the question of compensation before he can be deprived thereof for public use.

It has been held that payment to one other than the person entitled thereto is not a defense. Palo v. Rogers, 116 Conn. 601, 165 Atl. 803 (1933).

The courts have uniformly held that where property is subject to a tax lien, the payment of compensation money into the registry of the court does not extinguish the tax lien, but the lien is merely transferred from the land to the fund. Board of Capitol Managers v. Brasie, 72 Colo. 153, 210 Pac. 63 (1922); Ross v. Kendall, 183 Mo. 338, 81 S. W. 1107 (1904); Carpenter v. City of New York, 44 App. Div. 230, 60 N. Y. Supp. 633 (1899).

We quote from the Brasie case, supra, the following:

The money in the registry of the court stood in the place of the land, and the court below fell into error in not so holding. So much of the funds in the hands of the clerk as may be necessary should be applied to the payment of the special improvement tax, with accrued interest thereon, and the remainder, if any, should be paid to the respondent.

To hold that the statute of limitations should deprive a ■sovereign State of a just claim, in the circumstances of this -case, would be little less than tragic. A. F. O’Neil, Special Assistant United States Attorney, testified that he had paid millions of dollars to the county authorities, on other parcels •of land and in other cases, and in no case was the county made a formal defendant. This procedure, therefore, was the customary and established way of handling such matters between county and Federal authorities. The tax lien, being a first lien, always followed the proceeds and became a lien on any fund that might be paid into court by way of •-•compensation.

Witnesses on both sides in this case testified that in this-particular county it often happens in Federal and State condemnation cases that the county is not made a party defendant, but is paid off by orders of distribution after notification that the time is ripe for presentation of tax bills. In Corpus Juris Secundum the following language appears:

It is well settled, however, that where there are liens-on the land taken or injured, the court may allow the condemnor to pay the award into court for the benefit of the owner and the lienholders, although the lienhold-ers were not made parties to the condemnation proceedings. 29 C. J. S., Eminent Domain § 200. [Emphasis-supplied.]

The first overt act by the Government which gave any indication that the Federal Government intended to refuse to recognize the validity of the tax liens was when the orders of distribution were entered on April 8,1948. Prior to that date the county had been repeatedly assured by letter of the Special Assistant United States Attorney in charge of the condemnation proceedings, Mr. O’Neil, that the taxes would be paid out of any funds arising out of a jury or court verdict entered on final trial and disposition of the case. The funds were distributed without regard to the valid existing tax liens, and without provision for their payment. Again the county officials were not notified and the rights of the plaintiff were completely ignored. “Upon what meat doth this-our Caesar feed, that he is grown so great” as to be able to¡ ignore the established rights of a subdivision of a sovereign State ? One is reminded of the story of the cannibal who is said to have claimed title to a piece of land on the ground that he ate the owner.

Up to that good hour there was no occasion for suit to be filed. The State and county could not file foreclosure proceedings. It had apparently been the usual custom to pay the taxes as a recognized first lien out of the proceeds of compensation.

The suit was filed in this court April 13, 1953, well within the six-year statutory period.

In spite of the declaration of taking and physical possession, the process of taking was not complete until April 8, 1948, when .the funds were actually diverted from their proper channels and the repudiation of the obligation was finally declared. In any event, limitation could not possibly begin to run before February 16, 1948, when final judgment was entered. Until that time condemnation proceedings were still pending and the act of legal taking had not been completed.

The declaration of intention to take the fee simple title to property, plus the actual taking of physical possession, are not sufficient to transfer title. The Constitution says “nor shall private property be taken for public use, without just compensation.” Certainly final action by the court in the condemnation proceeding which had been filed was necessary before legal title passed.

The money was paid out to the former owners under an ambiguous agreement that apparently led such owners to believe that they were being paid these amounts for their equity. At the time these ambiguous agreements were made the Federal officials were fully aware of the fact that the sums that they were agreeing upon and paying were insufficient to cover the tax liens. In spite of all this, the money was paid out without a word being said to the plaintiff, who held a first lien on the fund. Whatever else may be justified, the defendant would be liable for such of the valid unpaid taxes that were in effect at the time the declaration of taking of the land was first made, to the extent at least that the funds unjustly distributed would have been sufficient to absorb such taxes.

The facts shine through this whole record that the Federal officials apparently feared to let the rate of compensation as to this suburban property be fixed at a regular trial and deliberately settled with the equity owners for the purpose of leaving the plaintiff without any enforceable rights.

I would hold that plaintiff’s cause of action first accrued on April 8, 1948, when plaintiff’s first lien claim was first repudiated.

And in the alternative, I would certainly hold that the act of paying out the settlement funds, on which plaintiff held a first lien, created a new cause of action to tlie extent that such settlement funds were sufficient to pay such taxes.

Whatever may be claimed as to any action or lack of action on the part of plaintiff, there was a cause of action that accrued when, with full knowledge of plaintiff’s rights in and lien on the compensation fund, the Federal officials paid out such funds without any notice to plaintiff. This, to the extent of such funds, certainly was a taking of plaintiff’s rights in the property. Up to the time of the distribution of the award moneys to the former owners the county’s rights were fully alive and unimpaired in the condemnation case.

I would allow plaintiff to recover the amount of taxes with interest from April 8,1948.

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Dissenting Opinion

Littleton, Judge,

joins in the foregoing dissenting opinion.

FINDINGS OF FACT

The court having considered the evidence, the report of Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes the following findings of fact:

1. On April 22, 1942, the defendant filed a petition in condemnation and a declaration of taking in the action entitled United States of America v. Certain Parcels of Land in the County of Cuyahoga, State of Ohio, and Peter Frank, et al., Civil No. 21234, in the United States District Court for the Northern District of Ohio. The action was filed to acquire the land in the City of Euclid, County of Cuyahoga, described in the petition and declaration of taking for the purpose of providing housing in connection with national defense activities. The petition stated that the estate or interest which defendant sought to acquire in the land was “the fee simple absolute discharged of all liens, encumbrances, charges, claims, restrictions, and covenants whatsoever; * * The declaration of taking stated that “The estate taken for said public use is the full fee simple title in and to said lands.” When the declaration of taking was filed, the defendant deposited in the registry of the court the amount estimated to be just compensation for all interests in the land. The declaration of taking described 13 parcels of land, and the total amount deposited in the registry of the court, as just compensation for all of the parcels was $73,516.00. The amount deposited as just compensation for parcel 2 was $21,450.00, and the amount deposited for parcel 3 was $13,450.00. On April 23,1942, the court entered a decree on the declaration of taking determining that the title to the land in fee simple absolute was vested in the United States. The decree was recorded in the land records of Cuyahoga County on May 4,1942, in Yol. 5439, p. 243.

2. Neither the State of Ohio, County of Cuyahoga, nor any official of the state or county was formally named as a party in Civil Case 21234, although they had full knowledge of the condemnation proceedings.

The officials of Cuyahoga County, Ohio, had actual knowledge of the pendency of the condemnation suit involved in this action. In 1942 the County Treasurer’s office furnished the attorneys, representing The United States, tax bills for the land involved in this litigation. The United States disputed the amount the County was claiming. As a result of this controversy over the validity and the correct amount due, a Mr. A. F. O’Neil, who was handling the matter for the defendant, urged the Auditor, the County Prosecutor, the Board of County Commissioners, the Treasurer and a representative of the State Tax Commission to come into the condemnation proceedings and to set up their interest in the property, but to no avail. An action to recover the taxes was first asserted by the County of Cuyahoga in its petition filed in this Court on April 13, 1953. This was more than ten (10) years after the County had actual knowledge of the pendency of the condemnation proceedings.

3. The persons named in the declaration of taking as the owners of parcel 2 were Ermino and Antonio DeFranco and Matilda Marino; the persons named as the owners of parcel 3 were Frank M. Fertig and Freda Fertig. Answers were filed in this case claiming that the values of parcels 2 and 3 were greater than the Government’s estimated values, the amounts which had been deposited in the registry of the court for parcels 2 and 3.

4. On April 22, 1942, there were delinquent taxes, special assessments and penalties on parcels 2 and 3 which were liens on the land as follows:

Taxes and special assessments for tbe tax year 1942 were a lien on April 22, 1942, but tbe amounts were unknown at that time. Tbe amounts were subsequently ascertained to be $1,840.00 as to parcel 2 and $1,015.89 as to parcel 3. In addition, there were special assessments which were a lien on the land for the full amount of the assessments when levied, but payable in annual installments after 1942. These were as follows:

5. The amounts due for special assessments on parcels 2 and 8 for 1945 and subsequent years were paid directly to the City of Euclid by the clerk of the district court from the amounts deposited as estimated just compensation for those tracts pursuant to an order for distribution filed November 29, 1945. The other taxes, penalties and special assessments were not paid from the amounts deposited in the registry of the court or otherwise.

6. All taxes, penalties and special assessments which were a lien on the land on April 22,1942, were paid to the County of Cuyahoga or the City of Euclid as to all parcels included in civil case No. 21234, except as to parcels 2,3 and 5. Partial payment of the amounts which were liens on parcels 2, 3 and 5 were paid by the clerk of the court to the County or to the City of Euclid from the funds on deposit in the registry of the court. The following payments were made from the funds on deposit in the registry:

(1) Under a final judgment and order of distribution filed November 20,1942, the County Treasurer was paid $3.37 for taxes on parcel 10.

(2) Under a final judgment and order of distribution filed November 30,1942, the County Treasurer was paid $3,907.60 for taxes on parcel 5.

(3) Under an order for distribution filed February 10, 1944, the County Treasurer was paid $231.27 and the City -of Euclid was paid $483.73 for special assessments on parcel •5. Subsequently, the County and the City returned the -checks for these amounts for the reason that they did not represent full payment and the County and City would not -accept partial payment. The checks were re-deposited in the registry of the court.

(4) Under an order for distribution filed February 10, 1944, the County Treasurer was paid $14.74 for taxes on parcel 9.

(5) Under an order for distribution filed July 31, 1945, the County Treasurer was paid the following for taxes:

Parcel 1_. $7,160.31

Parcel 4_ Parcel 6_. Parcel 8_. 1, 532.87 4,376. 78 8, 864.26

Parcel 10. 3.94

Total-- $21,938.16

(6) Under an order for distribution filed July 26, 1946, the County Treasurer was paid $5,582.31 for taxes on parcels 7,7A, 7B and 7C.

(7) Under an order for distribution filed August 12,1946, the County Treasurer was paid $36.71 for taxes on parcels 7,7A, 7B and 7C.

(8) Under an order for distribution filed.November 29, 1945, the City of Euclid was paid the following for special ■assessments:

Parcel 2-$3,480.96

Parcel 3- 1,811.30

Parcel 4- 209.95

Parcel 5_ 431.91

Parcel 6_ 145.91

Parcel 7- 266.56

Parcel 8_ 507.74

$6,854.33

7. Although a special assessment was a lien for the full, amount of the assessment when made, it was payable in annual installments over a period of years. The County officials could charge on the tax duplicates and collect only the annual installments as they became due. Under Ohio law,, however, the political subdivision, here the City of Euclid,, could accept payments of annual installments not yet due. The political subdivision notified the county auditor of such payments and the future installments were then canceled.¹ Payments to the City of Euclid in Civil Case No. 21234 were accepted by the City of Euclid and the County under this-procedure. Installments for the tax years 1945 and thereafter on Parcels 2, 3, 5 and others were paid directly to the City of Euclid and, therefore, canceled on the Auditor’s Assessment records and never charged to the tax duplicate. The County makes no claim for the installments payable in 1945 and subsequent years on parcels 2 and 3, because those installments were paid to the City of Euclid.

8. On June 1, 1939, the County Auditor issued a delinquent land tax certificate covering the DeFranco property,, which later became parcel 2 in Civil Case No. 21234. On September 22,1939, the County Prosecutor filed an action in the Court of Common Pleas of Cuyahoga County on behalf of the County Treasurer to foreclose on the DeFranco property for non-payment of delinquent taxes. A journal entry of foreclosure was filed on October 13, 1941. No further action has been taken in that case and it is still pending in the' Court of Common Pleas.

9. In June 1942, shortly after the filing of the petition and the declaration of taking in Civil Case No. 21234, Mr. Frank M. Brennan, Chief Deputy County Treasurer of' Cuyahoga County, now the Treasurer and the plaintiff in this action, was aware of the legal description of the entire area acquired by the Government, and the parcels included in the case. He also knew the individuals who owned each parcel of land and the amount of taxes due on each parcel. In 1942, Mr. Brennan knew that the County had not been joined as a party in Civil Case No. 21234 and he notified Mr. Balph W. Edwards, Chief Assistant Prosecuting Attorney, for the purpose of asserting the County’s claim. The first statement of the county’s complete claim was in a letter dated July 1, 1952, from Assistant Prosecuting Attorney Smolka to Special Assistant United States Attorney O’Neil. Mr. Brennan expected that taxes would be paid to the county out of the funds on deposit in the registry of the court, but he did not check the court records to determine whether the funds on deposit were sufficient to pay the amounts claimed by the county.

10. Mr. Balph W. Edwards was the Chief Assistant Prosecuting Attorney of Cuyahoga County from 1942 until about 1950 in charge of the Civil Division of the County Prosecutor’s office. He was responsible for representing the county in condemnation actions. In 1942, Mr. Edwards knew that the county had claims for taxes on the parcels included in Civil Case No. 21234 and that the county had not been joined as a party. On June 14, 1945, an order was entered in Civil Case No. 21234 with respect to eight parcels of land, including parcels 2 and 3, which provided:

THEBEFOBE, IT IS OBDEBED, ADJUDGED AND DECBEED that said land, * * * are exempt from all taxes, assessment, penalties or process levied after the year 1942 and for as long as title to said land shall be retained by the United States of America and the use of said land shall serve a public benefit, and that any and all taxes, assessments and penalties levied by the taxing authorities of Cuyahoga County, Ohio, after the year 1942 are null and void and held for nought and the taxing authorities of Cuyahoga County, Ohio, are forever barred from collecting same. . ■

(s) B. N. Wilkin,

. . United States District Judqe.

Approved:

(s) A. F. O’Neil,

Special Assistant U. S. Attorney.

(s) Frank T. Cullitan,

Prosecuting Attorney by B. W. Edwards, Attorney.

R. W. Edwards whose signature appears on the order is the same person as Ralph W. Edwards.

11. Mr. Julius J. Badzik is an Assistant Prosecuting Attorney of Cuyahoga County. From May 1943 until 1946 he was assigned the responsibility of collecting the delinquent taxes on the Fertig property, which is parcel 3 in Civil Case No. 21234. The collection of those taxes had been pending in the County Prosecutor’s office since 1939 or earlier, but no action was ever filed to foreclose on the property. Mr. Badzik’s efforts to effect collection consisted of several telephone conversations with an attorney for the former owners in 1944 and 1945, a telephone conversation with one of the former owners in 1944 and several letters written to Mr. O’Neil in 1946. In May 1945, he was informed that the case would be tried. By letter dated February 18, 1946, Mr. O’Neil told Mr. Badzik that the case was on the March trial list and went on to say, “The amount which is on deposit in court now is not enough to pay all the delinquent taxes and it may be that the jury verdict will be in an amount which will completely cover all taxes.” Mr. Badzik never examined the court records in Civil Case No. 21234 to ascertain what amount had been deposited as estimated just compensation. After he knew from the letter of February 18,1946, from O’Neil, that the amount on deposit was insufficient to pay the county’s claim, he took no action to assert the claim in Civil Case No. 21234. In his subsequent letters in 1946, he merely inquired as to whether the case had been tried and about the amount which had been awarded. The last report he received from Mr. O’Neil, on November 13, 1946, was: “As soon as the issues have been resolved you will be advised of the outcome.” Thereafter, the collection of delinquent taxes on parcel 3 was transferred from Mr. Badzik to Mr. John F. Smolka.

12. Mr. John F. Smolka is an Assistant Prosecuting Attorney of Cuyahoga County. Beginning in May 1943, he was assigned the responsibility of collecting the delinquent taxes on the DeFranco property, which is parcel 2 in Civil Case No. 21234. Between 1944 and 1948, Mr. Smolka had conversations with and wrote letters to Mr. O’Neil concerning taxes. Soon after the collection of taxes on parcel 2 was assigned to Mr. Smolka, he was informed of the pendency of Civil Case No. 21234. He knew that in a condemnation action, the United States pays only the market value of the land, even though there are liens on the land which exceed that value. Although Mr. Smolka never examined the court records in Civil Case No.'21234, he knew on November 3, 1945, that the United States had deposited $21,450 as estimated just compensation for parcel 2. At that time, Ms own records showed that the property had been foreclosed in 1941 for nonpayment of taxes in the sum of $28,446.52. On November 28, 1945, he was advised specifically by Mr. O’Neil that the amount on deposit was insufficient to pay the County’s claim on parcel 2 and on other parcels, and Mr. Smolka called this to the attention of Mr. Ralph W. Edwards, Chief Assistant Prosecuting Attorney. On February 18, 1946, Mr. O’Neil told Mr. Smolka that the case was on the March trial list and stated further that “The amount which is on deposit in court now is not enough to pay all the delinquent taxes and it may be that the jury verdict will be in an amount which will completely cover all taxes.” Mr. Smolka took no action to assert the County’s claim in Civil Case No. 21234 at that time or thereafter.

13. By stipulation dated December 6, 1947, the United States and the former owners of parcel 2 stipulated “that the sum of Thirty Thousand dollars and no cents ($30,000.00), inclusive of interest, shall be in full satisfaction of and just compensation for the taking by the United States of America” of parcel 2. The stipulation also provided:

It is further stipulated and agreed by and between the parties hereto that the sum of Thirty thousand dollars and no cents ($30,000.00), shall be subject to all liens, encumbrances and charges of whatsoever nature existing at the time of the taking of the said land and that any and all awards of just compensation ascertained and awarded in this proceeding and established by judgment herein to any and all parties now or subsequently named as defendants herein, shall be payable and deductible from the said sum, * * *

By stipulations dated December 19,1947, and January 17, 1948, the United States and the former owners of parcel 3 stipulated “that the sum of Twenty Thousand dollars and no cents ($20,000.00), inclusive of interest, shall be in full satisfaction of and just compensation for the taking by the United States of America” of parcel 3. These stipulations contained the same paragraph as the one quoted immediately above, except that the amount stated was $20,000.

On February 16, 1948, pursuant to the stipulations, final judgments were entered in Civil Case No. 21234 determining that just compensation for parcel 2 was $30,000 and just compensation for parcel 3 was $20,000. On April 8, 1948, on application of the United States, orders for distribution were entered under which the former owners of parcel 2 were paid $26,519.04 ($30,000, less $3,480.96 previously paid to the City of Euclid) and the former owners of parcel 3 were paid $18,188.70 ($20,000, less $1,811.30 previously paid to the City of Euclid).

14. After the payments from the funds on deposit in the registry of the court made under the orders for distribution of April 8, 1948, all funds in the registry available for payments in connection with parcels 2 and 3 were exhausted.

15. Within a month after April 8,1948, the Chief Deputy County Treasurer knew of the payments made under the orders for distribution and he informed the Chief Assistant Prosecuting Attorney, Ealph W. Edwards.

16. There is no evidence that any county official ever made any demand upon the former owners of parcels 2, 3 and 5 for payment from the amounts they received and there is no evidence that any comity official ever made any effort to ascertain whether a demand would result in payment to the county.

When the present action was filed, it included a claim by the comity for unpaid taxes on parcel 5. The United States Attorney made a written demand upon the former owners of parcel 5 that they pay to the County Treasurer the amount of the general taxes and special assessments due at the time the declaration of taking was filed. This demand resulted in payment to the County Treasurer of $413.19, the amount claimed to be due.

17. The plaintiff, Treasurer of Cuyahoga County, Ohio, has agreed that the values of parcels 2 and 3 are the amounts stated in the stipulations between the United States and the former owners.

18. It is not established that Mr. O’Neil had authority by virtue of his office or was otherwise authorized to make any commitment to, or enter into any arrangement with, any county official binding the United States with respect to payment of taxes to the county. The contemporary documentary evidence does not show that Mr. O’Neil made any commitment to, or entered into any arrangement with, any county official with respect to payment of delinquent taxes.

19. A housing project, known as Lake Shore Village, was constructed by the United States on the land acquired in Civil Case No. 21234. It included 800 units, the first of which was completed in August 1943 and all were completed by the end of June 1944.

20. On November 13 and 14, 1947, Mr. William O. Chatterton, an attorney from the Department of Justice in Washington, and Mr. Victor M. Todia, an attorney representing the former owners of parcels 1, 2, 3 and 4 in Civil Case No. 21234, negotiated for a settlement of the amount to be paid by the United States as just compensation for the four parcels. Mr. Chatterton informed Mr. Todia that he would recommend a settlement in the amount of $65,000, inclusive of interest, for the taking of the fee simple title to the four parcels. On November 14, 1947, Mr. Todia informed Mr. Chatterton that his clients would accept this offer of settlement. The regulations of the Department of Justice provided that only the Attorney General could accept a settlement on behalf of the United States. By memorandum dated November 17, 1947, the proposed settlement was submitted to the Attorney General and it was accepted by him on November 18,1947.

21. The allocation of the amount to be awarded as just compensation for each of the four parcels from the total settlement of $65,000 was left to the former owners. These amounts were furnished to Mr. Chatterton by Mr. Todia as follows:

$11,000 for parcel 1, $30,000 for parcel 2, $20,000 for parcel 3 and $4,000 for parcel 4.

22. The terms of the settlement as to each parcel were embodied in an approved form of stipulation used by the United States in fee taking cases. The stipulation as to parcel 2 provided:

COME NOW Ermino DeFranco, Antonio DeFranco and Mary Marino defendant (s) herein and hereby enter their appearances generally in this proceeding and hereby waive service of summons and any and all other process and notice in this proceeding and hereby waive all right to a hearing or trial on the issue of just compem sation, and

IT IS STIPULATED and agreed by and between the said parties hereto that the sum of THIRTY THOUSAND dollars and No cents ($¡50,000.00), inclusive of interest, shall be in full satisfaction of and just compensation for the taking by the United States ox America of (Parcel) No. 2 as described in the Petition in Condemnation, Declaration of Taking, and Decree on Declaration of Taking, together with and including all buildings and improvements thereon and all appurtenances thereunto belonging, and

IT IS FURTHER STIPULATED and agreed by and between the parties hereto that the sum of THIRTY THOUSAND dollars and No cents ($30,000.00), shall be subject to all liens, encumbrances and charges of whatsoever nature existing at the time of the. taking of the said land and that any and all awards of just compensation ascertained and awarded in this proceeding and established by judgment herein to any and all parties now or subsequently named as defendants herein, shall be payable and deductible from the said sum, * * *

This stipulation was dated December 6, 1947, signed by A. F. O’Neil for the United States and by the former owners, Ermino DeFranco, Antonio DeFranco and Mary Marino. It was filed in Civil Case No. 21234 on February 16,1948.

Identical stipulations, except as to amounts, the names of the former owners and the parcel numbers, were executed and filed as to parcels 1, 3 and 4. There were two stipulations as to parcel 3. The first was signed by Florence F. Fertig and Julia C. DeFranco, and had their names in the first paragraph and the amount of $20,000 in the second and third paragraphs.

This stipulation was dated December 19,1947, and filed in Civil Case No. 21234 on February 16, 1948. The second stipulation as to parcel 3 was signed by Florence F. Fertig,, Administratrix of the Estates of Frank M. Fertig, deceased* and M. Freda Fertig, deceased, bad ber name and tbe same designation in tbe first paragraph and tbe amount of $20,-000 in tbe second and third paragraphs. This stipulation was signed January 17, 1948, and filed in Civil Case No. 21234 on February 16, 1948, Tbe stipulation as to parcel 1 was dated December 30, 1947, and filed February 16, 1948. Tbe stipulation as to parcel 4 was dated November 22,1947, and filed December 1,1947.

23. During the negotiations for settlement between Mr. Chatterton and Mr. Todia tbe fact that delinquent taxes were outstanding was discussed and Mr. Todia was informed that tbe taxes would have to be paid before he would get a check covering tbe settlement. The former owners of parcels 2 and 3 knew that delinquent taxes were outstanding when they signed the stipulations but they all testified that the amounts named were to be the net amount to them; otherwise they would never have agreed to these amounts which were less than outstanding tax liens against the property.

24. On February 16,1948, a final judgment was entered in Civil Case No. 21234 as to parcel 2 as follows:

This matter now coming on for hearing at this term of Court, and it appearing to the Court that the petitioner, the United States of America, has filed in this proceeding a Declaration of Taking (No. 1) covering lands in Cuyahoga County, Ohio, and deposited into the Registry of the Court the sum of $73,516.00 as estimated just compensation therefor, and that the title to said land was on the. 23rd day of April, 1942, indefeasibly vested in the petitioner in fee simple absolute; that included in the land so taken is (Parcel]) 2, described in the Petition in Condemnation, Declaration of Taking (No. 1) and Decree on Declaration of Taking (No. 1), for which estimated compensation in the sum of $21,450.00 was included in said deposit, as stated in the said Declaration of Taking (No. 1) ; and

That all persons owning or otherwise interested in said parcel of land have stipulated and agreed that the sum of $30,000.00, without interest, is the just compensation to be paid for the taking of said parcel of land;

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the sum of Thirty Thousand Dollars and No Cents ($30,000.00) is the full, adequate and just compensation for (Parcel) 2, included in the lands taken by Declaration of Taking and sought to be condemned in this proceeding; and that title to said (parcel) of land is vested in the United States of America and divested out of all other persons; and, the deposit in Court being $21,450.00:

_ IT IS FURTHER ORDERED that a deficiency judgment in the sum of 8,550 Dollars and 00 Cents ($8,550.00), be entered in favor of the defendants and against the petitioner, United States of America; and That this proceeding be and the same is hereby retained for the further orders of this Court.

On the same day a final judgment was entered in Civil Case No. 21234 as to parcel 3 as follows :

This matter now coming on for hearing at this term of Court, and it appearing to the Court that the petitioner, the United States of America, has filed in this proceeding a Declaration of Taking (No. 1) covering lands in Cuyahoga County, Ohio, and deposited into the Registry of the Court the sum of $73,516.00 as estimated just compensation therefor, and that the title to said land was on the 23rd day of April, 1942, indefeasibly vested in the petitioner in fee simple absolute; that included in the land so taken is (Parcel) 3, described in the Petition in Condemnation, Declaration of Taking (No. 1) and Decree on Declaration of Taking (No. 1), for which estimated compensation in the sum of $13,4-50.00 was included in said deposit, as stated in the said Declaration of Taking (No. 1) ; and

That all persons owning or otherwise interested in said parcel of land have stipulated and agreed that the sum of $20,000.00, without interest, is the just compensation to be paid for the taking of said parcel of land;

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the sum of Twenty Thousand Dollars and No cents ($20,000.00) is tire full, adequate and just compensation for (Parcel) 3, included in the lands taken by Declaration of Taking and sought to be condemned in this proceeding; and that title to said (parcel) of land is vested in the United States of America and divested out of all other persons; and, the deposit in Court being $13,450.00:

IT IS FURTHER ORDERED that a deficiency judgment in the sum of 6,550 Dollars and 00 Cents ($6,-550.00), be entered in favor of the defendants and against the petitioner, United States of America; and That this proceeding be and the same is hereby retained for the further orders of this Court.

25. On April 8,1948, an order for distribution was entered in Civil Case No. 21234 as to parcel 2 as follows:

This cause came on to be heard upon the application of the United States of America, petitioner herein, and it being shown to the Court that the right to the full fee simple title in and to Parcel 2 is now vested of record in the United States of America;

That by virtue of a stipulation and final judgment thereon, on file in this court, the agreed compensation for the taking of said Parcel 2 is the sum of $30,000.00 which has theretofore been deposited into the registry of this court;

That by virtue of a previous order of distribution the sum of $3,480.96 has been distributed from said funds, leaving on deposit the sum of $26,519.04 which should now be distributed to the persons entitled thereto.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Clerk of this Court be and he is hereby authorized to issue a check in the sum of $26,519.04 to Ermino DeFranco, Antonio DeFranco and Mary Marino, c/o Attorneys Todia, Gordon and Sweeney, Terminal Tower Building, Cleveland, Ohio.

On the same day an order of distribution was entered in Civil Case No. 21234 as to parcel 3 as follows:

This cause came on to be heard upon the application of the United States of America, petitioner herein, and it being shown to the Court that the right to the full fee simple title in and to Parcel 3 is now vested of record in the United States of America;

That by virtue of a stipulation and final judgment thereon, on file in this court, the agreed compensation for the taking of said Parcel 3 is the sum of $20,000.00 which has heretofore been deposited into the Registry of this Court;

That by virtue of a previous order of distribution the sum of $1,811.30 has been disbursed from said funds, leaving on deposit the sum of $18,188.70 which should now be distributed to the persons entitled thereto.

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the Clerk of this Court be and he is hereby authorized to issue a check in the sum of $18,188.70 to Florence F. Fertig, individually and as Ad-ministratrix of the Estates of Frank M. Fertig, deceased and M. Freda Fertig, deceased and to Julia C. DeFranco, % Attorneys Todia, Sweeney and Gordon, Terminal Tower Building, Cleveland, Ohio.

Payments were made by the clerk of the court in accordance with these orders.

26. Mary Marino is deceased and Anthony O. DeFranco was appointed executor of her will on January 28, 1953, in Docket 486, Number 477749, Probate Court of Cuyahoga County.

CONCLUSION OP LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and the petition is therefore dismissed.

1 Page’s Ohio General Code, section 5677: “The taxing authority of any political subdivision which has levied or shall hereafter levy any special assessment or reassessment payable in installments over a period of more than one year, may * * * accept payment in cash of all of the installments of such assessements or reassessment charged against any lot or parcel of land and' not due * * *.”

Section 5677-1: “If such installments have been certified to the county auditor for collection, the fiscal officer of the subdivision shall, upon the payment of such installments, certify the fact of such payment to said county auditor, who shall thereupon cancel such installments upon his records.”