13 Ohio St. 201 | Ohio | 1862
By the assignment of errors, in this case, it is claimed that the court erred :
1. In refusing plaintiff leave to file his supplemental petition, and make said Joseph K. Secor a party.
2. In refusing to order said taxes, penalty and interest, to be paid out of said proceeds of sale.
3. In ordering the surplus of said proceeds of sale, after paying the mortgage debt, interest and costs, to be paid over to said Esther M. Fitch.
The propriety of these several rulings of the court, de
In the case of Creps v. Baird, 3 Ohio St. Rep. 277, it was held, that a purchaser, at judicial sale, takes the land subject to ‘all the tax incumbrances existing against it at the time of sale, and not provided for in the judgment, because, such sales being without warranty, the rule of caveat emptor applies to them. But, by the act of April 5, 1859, “for the assessment and taxation of property in this state, and for levying taxes thereon according to its true value in money,” it is provided, in the close of the 77th section, that “ when any real estate shall be sold at judicial sale, * * * the court shall order the taxes and penalties, and the interest thereon, against such lands, to be discharged out of the proceeds of such sale.” S. & C. St. 1465. The question arising in this case, involves, merely, the construction of this enactment.
Being an innovation upon rules of law previously well settled, we may fairly assume that it should be construed strictly.
It is clear that such a case, as is here shown by the record, is not, in terms, provided for by the statute. It provides for the discharge of taxes, penalties,, and the interest thereon. Taxes are imposed by public authority, and for public benefit. But, in this case, the taxes had been paid to the public. The land had been sold for their payment, and the claim of the state had been thereby fully satisfied. It is true that Secor, the purchaser at tax sale, had acquired thereby an interest in or lien upon the land. But this was not, in his hands, a tax. He had bought the land, and paid the taxes. His claim, if the owner desired to redeem the premises, was not even limited'to the amount of the taxes and penalties which he had paid; but was enhanced by a.n additional penalty of fifty per cent., forming an aggregate, in this case, of nearly §800. And he had no power to compel the payment
I have found no other place in the statute booh where the sum payable in redemption of lands sold at tax sale is called taxes. So long as the claim against the owner stands unpaid upon the duplicate in favor of the public, it is always called a tax, or tax and penalty, or tax, interest and penalty; but after the public demand has been satisfied by a sale, and the claim against the owner becomes private property, it is uniformly spohen of in other appropriate terms. And if we look to the general purpose of the whole act in which this provision is found, either as disclosed by its title, or manifested throughout, in its several parts, the conviction is strengthened that, by the clause in question, the legislature meant nothing more than to provide for the payment and discharge, by the proper party, of all liens upon the premises sold, arising from the exercise of the taxing power, and still held by the state.
Thus construed, the law can be readily carried out by the court, upon motion, without making new parties.
The amount of taxes, properly so called, and penalty, due thereon, payable to the county treasurer, would be shown by the duplicate. But the amount payable to the purchaser at tax sale, would depend upon the regularity of the proceedings under which he claims. He must, therefore, be made a party, and the amount of his claim ascertained by an investigation of those proceedings. If all this can be done, after the judicial sale has been effected and confirmed, the result would be the application of the proceeds of sale not to the payment of taxes, but to the discharge of incumbrances owned and held by persons who were strangers to the whole proceeding at the time of sale, and the existence of whose claims may have prevented the land from selling at a higher price.
Prudent men, acting upon the maxim caveat emptor, would take such incumbrances into the account, and unless the law was well understood to mean what it does not say, would graduate their bids accordingly.
When creditors desire to sell lands of their debtor, free
The judgment of the district court is therefore affirmed.