
    State ex rel. U. S. Mortgage & Trust Co. v. Godfrey, Auditor.
    
      Delinquent tax sale of land — Does not vest purchaser with title, at time of sale — Purchaser may be invested with title in two years — If land not redeemed — Duty of auditor as to transfer of such land to name of purchaser.
    
    1. A sale of land at a delinquent tax sale does not vest in the holder of a certificate of purchase at such sale, the title to the property so sold; but the holder of such certificate acquires a right to be invested with the title to such land at the expiration of two years from the sale, if not redeemed.
    2. It is the duty of the auditor, after delivering a certificate of purchase of delinquent land sold for taxes, to transfer the same into the name of the purchaser; and it is also his duty, when the same lands have been sold and conveyed by the owner, or conveyed under a judicial sale of the owner’s interest, within two years from the delinquent tax sale, to transfer the the same to the grantee under the deed; but if such lands should not be redeemed within two years from the time of the delinquent tax sale, and the auditor has executed and delivered a deed therefor to the purchaser, it will then be the duty of the auditor to transfer the land to the name of the holder of the tax deed.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Lucas county.
    Tbe relator filed in the circuit court of Lucas county its petition for a writ of mandamus against Wiliiam M. Godfrey, the auditor of said county, which is as follows:
    The relator, the United States Mortgage & Trust Company, for its petition says:
    That it is a corporation duly incorporated under the laws of the state of New York;
    That William M. Godfrey is now and for more than one year last past has been, the duly elected qualified and acting auditor of the county of Lucas in the state of Ohio.
    
      Relator further says: That, on the 10th day of December, 1897, Mary T. Henahan and Michael Henahan were and for four years prior thereto had been and until the 10th day of July, 1899, continued to be, the owners in fee simple of the following described property, to-wit:
    (Here follows description of the property.)
    That, to secure, the payment of a promissory note, the said Mary T. Henahan and Michael Henahan, on said 10th day of September, 1897, executed and delivered to relator, their mortgage deed covering said property, which was duly recorded in the office of the recorder of Lucas county, Ohio.
    That the condition of said mortgage having been broken, relator in the month of October, 1898, filed its petition in the court of common pleas of Lucas county, Ohio, in a suit against said Mary T. Henahan and Michael - Henahan, praying for the foreclosure of said mortgage and the sale of said property; that said Mary T. Henahan and Michael Henahan were each duly served with summons in said suit, and that thereafter and at the April term, 1899, of said court relator recovered a judgment and decree in said suit, foreclosing said mortgage and ordering a sale of said property by the sheriff of said county; that in pursuance of said decree the sheriff of said county, on the 17th day of June, 1899, sold said property to relator and that thereafter and at said April term of said court, said sale was duly confirmed by said court and said sheriff ordered to execute and deliver to relator a deed of conveyance of said property; that on the 10th day of July, 1899, said sheriff, in pursuance of said proceedings in said court, duly executed and delivered to relator a deed of conveyance of said property, whereby relator became the owner in fee simple thereof.
    Relator further says: That on the 17th day of January, 1899, at a sale of lands for delinquent taxes held by the treasurer of Lucas county, Ohio, the said'treasurer sold said property to one Charles H. Wiltsie and the said William M. Godfrey, auditor of said county as aforesaid, issued to said Wiltsie certificates of purchase of said property.
    Relator further says: That on the tax duplicate in the office of the auditor of said county for each of the years 1897 and 1898, said property stood in the names of said Mary T. Henahan and Michael Henahan; but that said auditor, immediately after the delivery -of said certificates of purchase, transferred said property on his duplicate for 1898 into the name of said Charles H. Wiltsie, the purchaser, as required by Section 2888 of the Revised Statutes of Ohio; that said transfer was made by said auditor by stamping the words and letters “Chas. H. Wiltsie, T. T. 1899” on said duplicate on the same lines with the names of said Mary T. Henahan and Michael Henahan.
    Relator further says: That on the 21st day of September, 1899, relator duly applied to the said William M. Godfrey, cpunty auditor as aforesaid, to have the property transferred on the tax list into the name of relator, the owner thereof, at the same time presenting the deed executed by the sheriff as aforesaid showing title in relator, and exhibiting to said auditor the record of said suit, and at the same time tendering the fee required by law;
    That said county auditor refused and still refuses to transfer said property into the name of relator, the owner thereof, to the great injury of relator.
    Relator further says: That the sole ground of refusal by said county auditor to so transfer said property was and is that the said property has been transferred into the name of said Charles H. Wiltsie, the purchaser at said tax sale.
    And relator says that said Charles H. Wiltsie has no title to said property; that he is not the owner thereof; that two years have not elapsed since the delinquent tax sale of said property at which said Wiltsie purchased the same, nor has the county auditor executed or delivered any deed for said property to said Wiltsie.
    Wherefore, relator prays that a writ of mandamus issue, commanding said William M. Godfrey, auditor of the county of Lucas as aforesaid, on receipt of the fee prescribed therefor to transfer said property on the tax list into- the name of relator and to endorse on said sheriff’s deed (when presented for that purpose) that the proper transfer has been made in his office.
    The defendant demurred to the petition on the ground that the petition does net state facts sufficient in law to entitle the relator to the remedy sought. The circuit court sustained the demurrer, and the relator not desiring to plead further the court dismissed the petition. The relator, by a petition in error here, seeks to reverse the judgment of the circuit court.
    Swayne, Hayes é Tyler, for plaintiff in error.
    
      Charles E. Sumner, for defendant in error;
   Davis, J.

It will conduce to clear thinking in this case t® note that certain sections of the Revised Statutes cited by the defendant (Secs. 2899 and 2900), as well as all of the other sections included in the same chapter, relate solely to the forfeiture and redemption of lands which have been offered for sale at a delinquent tax sale and were not sold for want of bidders. The procedure for the sale or redemption of forfeited lands is strikingly different from that for delinquent taxes; and the legislation.respecting these two classes of tax sales is so carefully distinguished by the legislature itself, that sections relating to one class cannot be safely relied on in construing the effect of proceedings in the other class.

. ..One of the questions raised in this ease ,is whether the certificate of purchase which the auditor is required to issue to a purchaser at a delinquent tax sale, confers upon such purchaser a title to the land or lot sold for taxes. Although it is provided (Revised Statutes, Sec. 2875) that “said certificates of purchase shall be assignable in law, and an assignment thereof shall vest in the assignee or his legal representatives all the right and title of the original purchaser ” not the right and title of the original owner; yet, in view of the requirement that.no deed shall be made until the expiration of two years from the sale, and that nothing shall be done in the meantime to mark off or designate the property sold, together with the reservation of the right of redemption to be exercised within the same period, as well as the declaration of the statute (Sec. 2877) that the deed so made shall vest in the grantee, his heirs and assigns, a good and valid title both in law and equity, thereby plainly implying that title had not vested before, we cannot resist the conclusion that the sale for taxes is a sale of the interest of the owner defeasible by redemption; and that it is no more a title, while it is only evidenced by the certificate of purchase, than is a contract for the sale of real estate, before the execution of a deed thereunder. That it confers a right and may ripen into the privilege of calling in the legal title,, yet does not confer a legal title, can scarcely be doubted. Rice v. White, 8 Ohio, 210. The only thing that is surely conferred upon the purchaser holding the certificate of purchase is the lien of the state for taxes (Sec. 2880) ; for the right to a conveyance may be defeated by redemption within the two years.

The contention in this case arises out of an apparent conflict between Revised Statutes, Secs. 2888 and 1025. It is said that the former section is mandatory upon the auditor; but it is not more so, in our view, than section 1025, which provides as follows: “The auditor shall, on application and presentation of title * ■■ * •; * transfer any land or town lot, or part thereof, charged with taxes on the tax list, from the name in which it stands into the name of the owner, when rendered necessary by any conveyance * * *; and the auditor shall indorse on the deed, or other evidences of title presented to him, that .the proper transfer of the real estate therein described has been made in his office, or that the same is not entered for taxation, and sign his name thereto.”

The imperative nature of this duty of the auditor is manifest when Revised Statutes, Sec. 1025, is read in the light of Revised Statutes, Sec. 1159, which provides that “the recorder shall not record any deed of absolute conveyance of land until the same has been presented to the county auditor, and by him indorsed “Transferred” or “Transfer not necessary.” If when a deed, which is in due form, is presented to the auditor for transfer, he may, merely for the reason that he has theretofore issued a certificate to a purchaser at a delinquent tax sale, refuse to transfer the deed, whether it be the deed of the owner or, as in this case, a sheriff’s deed, the result is that such deed is excluded from the records, and the grantee named in the deed is by that act of the auditor prevented from giving to the world such constructive notice of his title as the record of deeds would, and is designed to, afford.

The auditor is required under a penalty, to enter on the duplicate a transfer of the lands sold for taxes into the name of the purchaser; but this transfer is confined to the duplicate, and neither it nor the certificate finds a place in the records of title. It does not become a linli in the chain of title, and is not intended therefor, but is intended merely to facilitate the collection of taxes and to show the purchaser’s right to a deed if the land should not be redeemed. It may ripen into a title- if the property be not redeemed and the deed made to the purchaser by the auditor; and in that case the deed will find -its way to the records and become a part of the chain of title. The auditor may, therefore, and should, retain upon the duplicate the transfer to the holder of a certificate; but he cannot refuse within the two years from the date of the tax sale, to transfer any conveyance from the owner, or a deed made in pursuance of a judicial sale of his interest in the property, nor to indorse the same, so that the conveyance may be admitted to record. This could not interfere with the rights of the purchaser holding a certificate of purchase at a delinquent tax sale; for if the land should not be redeemed within the two years, the purchaser will receive his deed from the auditor, which is prima facie good as against the world, and it would then be the duty of the auditor to endorse a certificate of transfer upon this deed also, so that it may also go upon the records. In that way the rights of all parties will be preserved, and such we believe to have been the intention of the legislature.

Judgment reversed.  