
    Chapman v. Sollars.
    1. A purchaser at a tax sale of land delinquent for the non-payment of assessments under the Two-Mile Road Improvement Law, after the same has proved invalid, on account of a defective description of the lands.upon the tax duplicate, may prosecute an action against the owner to recover the amount of taxes, interest and penalties due at time of sale, interest subsequently accruing, and all legal taxes by him afterwards paid. under authority of section 32 of the act relating to county auditors (S, & O. 104), and section 106 of the tax law of 1859 (S. & C. 1473).
    2. In such case parol evidence is admissible in connection with the duplicate to identify the lands actually assessed.
    3. The fifty per cent, penalty imposed upon the owner who redeems his land's from a sale for taxes cannot be recovered in this action.'
    Appeal. Eeserved in the District Court of Highland county.
    In January, 1875, the plaintiffs purchased, at delinquent tax sale by the treasurer of Highland county, three parcels of land, which had been returned delinquent in the name of defendant Samuel Sollars. The delinquent taxes consisted of assessments made by the commissioners of said county for the payment of two road improvements under the act of March 29,1867, and its amendements, commonly known as the Two Mile Eoad Improvement Acts. After the expiration of two years, a tax deed was executed by the auditor of the county to the plaintiffs for the lands so alleged to have been sold for delinquent taxes, whereupon the plaintiffs brought an action against Sollars to recover the possession of the lands, in which action it was found and adjudged that said tax sale was invalid by reason of irregularity in the proceedings. The only irregularity shown to have existed consisted in defective and insufficient descriptions upon the tax duplicate of the lands assessed and sold.
    Thereupon this action was commenced under favor of section 32 of the act of April 4, 1859, relating to auditors of counties (S. & C. 96), which provides, “ Upon the sale of any land or town lot for delinquent taxes the lien which the state has thereon for taxes then due shall be transferred to the purchaser at said sale; and if such sale should prove to be invalid on account of any irregularity in the proceedings of any officer having any duty to perform in relation thereto, the purchaser at such sale shall be entitled to receive from the proprietor of such land or lot the amount of taxes, interest and penalty, legally due thereon at the time of such sale, with interest; thereon from the time of payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such -sale, and such land or lot shall be bound for the payment thereof and section 106 of the tax law of April 5,1859 (S. & O. 1473), which provides that “ the amount of taxes and penalties charged on the land at the time it was sold, together with all legal taxes afterward paid thereon by such purchaser, his heirs or assignees, shall operate as a lien on said lands and may be enforced as any other lien.”
    The plaintiffs seek to enforce a lien against the lands of defendant Sollars, for the amount of the assessments, interest and penalties charged against them at the time of sale, interest accruing since that date, and taxes paid by them since the date of sale, and also fifty per centum of penalty in addition thereto.
    Defendant Sollars denies the plaintiffs right to recover. The other defendants are mortgage lienholders subsequent to date of the tax sale.
    The cause was appealed from the judgment of the common pleas, in favor of plaintiffs, except as to fifty per cent, penalty, and a small tract of 8K acres, which it found was never owned by Sollars, to the district court. The district court refused to hear parol testimony in aid of the duplicate description for the purpose of identifying the lands assessed, and having stated the case as found upon other testimony, reserved it for decision in this court.
    
      C. H. Collins, for plaintiff in error:
    The taxes were a lien on the land. Dreake v. Beasley, 26 Ohio St. 315, and see Gillett v. Webster, 15 Ohio, 623; Stephan v. Daniels, 27 Ohio St. 531; Craig v. Heis, 30 Ohio St. 551; 31 Ohio St. 654.
    
      Matthews & .Huggins, with whom was J. H. Thompson, for defendant in error:
    1. If plaintiffs have a lien at all, it is for no more than the money paid and legal interest.
    2. Parol testimony is not admissible to sustain the description of the land. Hunnels v. Smith, 15 Ohio, 134; Turney v. Yeoman, 16 Ohio, 24; Stewart v. Aten's Lessee, 5 Ohio St. 257.
   McIlvaine, J.

We have considered three questions arising on this record.

1. Can the plaintiffs maintain an action under the statutes .above quoted ?

It was decided in Craig v. Heis, 30 Ohio St. 550, that assessments under the Two-Mile Road Improvement Acts constitute a lien upon the lands assessed. In addition to the arguments found in the opinion in that case, I will name one or two considerations tending to the same conclusion. In Dreake v. Beasley, 26 Ohio St. 315, it was held that these assessments were not a personal charge against the owner of lands assessed, hence, the charge, or lien upon the land, is the only security provided for their payment. Again, the act of April 11, 1876 (73 Ohio L. 218), gives to the treasurer of the county the right to enforce the lien of taxes and assessment by action. Assessments under the Two-Mile Improvement Acts have uniformly been regarded as within the meaning of this act.

The lien being shown to exist, it must exist in favor of the state. These road improvements are state improvements, worked out through instrumentalities employed by the state. The power of taxation or assessment is in the state, and is put in operation by the state. And section 53 of the tax law of 1859, as amended February 25, 1862 (S. & S. 762), declares, “ That the lien of the state for taxes levied for all purposes,” &c. The lien for these assessments must be regarded as the lien of the state.

No other objection to the right of the plaintiffs to this action being made, the first question must be answered in the affirmative.

2. May parol evidence be offered to help out the defective description, on the duplicate, of the lands assessed ?

In respect to this question it must be assumed that the defendant was the owner of lands within two miles of the improvement ; that these lands were benefited, and ought to have been, and, in fact, were, assessed for the payment of the same.

The viewers, whose duty it was to report the lands subject to assessment, made report, and, among others, reported as follows:

Owner’s Name.
Samuel Sollars.
Original Quantity.
1000.
No. of Entry.
1838.
Water Course.
Rattlesnake.
Original Owner.
Wm. Cherry.
Acres.
300

By this description a parcel of the land assessed was placed . upon special tax duplicate for collection as other taxes.

It is conceded that the description is insufficient to suppoi’t a tax sale. And, on the other side, it is admitted that if the tax levied had been for general revenue, parol evidence, in such an action as this, might be admitted for the purpose of identifying the land subject to the lien. We can perceive no substantial difference between the cases which could vary the rule as to the admission of evidence in aid of the description contained on the duplicate.

When the purchaser at a tax sale relies upon a legal title acquired thereunder, the policy of the law requires that he should show by record evidence that every essential proceeding was had in conformity to the requirements of the statute. But when the suit is brought under authority of the state, to recover money paid for defendant’s use, and which, in equity, he ought to have paid, a court of equity will inform itself, by parol testimony in aid of the record, of the existence of every fact necessary to sustain the plaintiff’s suit.

If all the proceedings necessary to charge the lands described in the petition with the payment of these assessments were, in fact, conducted in accordance with law by the officers having duties to perform in relation thereto, save only that the description reported by the viewers, and placed on the duplicate, was imperfect, we think there can be no doubt that the case is within the statute, and parol evidence should be heard for the purpose of identifying the lands actually assessed.

3. The fifty per cent, penalty on the amount actually paid at tax sale cannot be recovered in this action. Such penalty is only assessable on redemption of the lands by the owner. The defendant had no occasion to redeem, as he lost nothing by the sale. Johnson v. Stewart, 29 Ohio St. 498.

Cause remanded to district court, with directions to proceed to final trial and judgment in accordance with this opinion.  