Stewart v. Aten's Lessee

5 Ohio St. 257 | Ohio | 1855

J. R. Swan, J.

When land is described in a deed or other instrument as a certain number of acres, situate in the corner of a designated tract, the description would be wholly defective, unless certainty could be given to it by legal construction. It has, therefore, been held, in order to sustain such description, that it means a square. Applying this rule of construction to the duplicate in the case before us, there was an assessment of taxes upon 150 acres of land, situate in the north-west corner of section No. 36, in the form of a square. Such square was assessed with taxes, which should have been assessed upon 150 acres shaped like an E; and the square included lands not within the bounds of the last mentioned premises. Penalties for the non-payment of taxes, upon premises without the bounds of the square, and which were not assessed with taxes at all, have been laid upon the square; and the square has been sold to pay these unauthorized taxes and penalties. It is therefore clear, that the fact that a part of the 150 acres, intended to be assessed, being within the limits of such square, affords no ground for a recovery of that part of the 150 acres which fall within the limits of a square. It would be permitting one part of a tract of- land to be assessed, and sold with penalties and interest for the taxes of another portion,not assessed.

If we reject the rule of construction by which the description of the land is held to be a square, what other shall be adopted to find the land described on the duplicate ? Proof that the person named as owner, in fact owned 150 acres somewhere in the northwest part of the section, has never been permitted or recognized as a mode of helping out a defective description in a tax duplicate."

The 115 acres claimed by the plaintiff, so far as the tax duplicate describes it, might as well be in the form of a V as of an E. A portion of the tract is nearer the south-west than the northwest corner. There is nothing in the tax duplicate description by which the 115 acres could be found. This defect- is fatal to the tax title. It is said that it is impracticable for the auditor of the county to give such description of sub-divisions of land as that they may be found. This may be true; and, it is also true, that the courts of this State have, ever since their organization, required such description, to render a tax sale valid; and that the general assembly, advised of this by reported adjudications, have not interfered by legislation with the rulings of the courts upon this subject.

In many, perhaps in all cases, the auditor of a county could make brief references upon the duplicate to plats and records in his office, so that the same might form a part of the description in the duplicate, and thus avoid a common objection to tax titles.

Judgment below affirmed.