
    Younglove v. Hackman.
    
      Street — Appropriation of land to open — Severance of single tract into two parcels — Charge of assessment on one parcel — Tax sale — Valid, though part of tax illegal— Whether purchaser entitled to illegal taxes paid.
    
    1. The appropriation by a municipal corporation of land for the opening of a street through a parcel of land standing on the tax duplicate as a single lot, severs the same into two lots, for the purposes of assessment, though it remains on the general tax duplicate as an entirety for purposes of other taxation. Spangler v. City of Cleveland, 35 Ohio St. 469, approved and followed.
    2. Where the same is assessed as two lots, and the assessments thus made are certified to the county auditor for collection, it is error to charge such assessments made on each side of the street upon the land on one side of the street.-
    3. Where land is sold for non-payment of taxes charged thereon, and some part of such taxes is so charged illegally, such sale is void.
    4. Where a tax sale proves to be invalid, the purchaser is entitled to receive the legal taxes, including interest and penalty legally thereon paid by him, and legal taxes subsequently paid by him, with interest from the date3 of such payments; but he is not entitled to receive illegal taxes thereon paid by him, or interest or penalty thereon.
    Error to the District Court of Cuyahoga county.
    Since 1867, Moses C. Younglove has owned a lot of land 235 feet wide, situated in East Cleveland, which, in October, 1872, became a part of the city of Cleveland. In 1878 Prospect street was extended east through this lot, so as to divide the lot into two parts; the part on the north side being but 22 feet in depth and 285 feet front, and the part on the south side being 235 feet front and of a much greater depth.
    For opening this East Prospect street an assessment was made on lands abutting and adjacent, and was $3 per foot front on the north side, and $7 per foot front on the south side ; being $705 on that part of the lot lying north of the street, and $1,645 on the part lying south of the street.
    Assessments for grading the street and for curbing were also made on each side by the foot front.
    On March 30, 1874, Younglove paid to the city treasurer $1,645, which was the full amount of the special assessment levied upon the land on the south side of said street for the opening of the same. The tax for the grading and curbiug was not payable until 1874. The special assessment levied upon the north side lot for the opening of the street, and the special assessment levied upon both the north side lot and the south side lot for the grading and curbing of the street, were certified to the auditor of the county ; and by him the entire assessment for opening the street levied upon the north side lot — being two installments of $165 each— and the entire assessments for grading and curbing the street levied upon the north side lot, together with the special assessments for grading and curbing levied upon the south side lot, and the general tax and sewer tax against both pieces of land, weré all charged upon the general tax duplicate for the year 1874, and for all subsequent years against the lot of land on the south side of East Prospect street.
    Before any of the items of tax or assessment had become delinquent, plaintiff in error tendered to the treasurer of the county the general and sewer taxes and the special assessments levied upon the south side lot, but declined to pay the assessments which were really levied upon the north side lot and charged upon the duplicate upon the south side lot, on the ground that the assessments were illegal. Like tenders were regularly made by Younglove. or his agents, and in each case before delinquency, twice a year until and including July, 1877; and in June, 1877, he brought this suit. All tenders were refused by the treasurer.
    On January 18, 1876, the lot on the south side of the street was sold to defendant, Joseph Hackman, for $967.86.
    The items making up that sum were as follows :
    General tax for 1874 against both lots.........................................$ 46 20
    Sewer “ “ “ “ “ .......................................... 11 55
    Opening assessment north side lot, 1st installment......................... 165 00
    “ “ « “ “ 2d “ ......................... 165 00
    Grading and curbing assessment north side lot, 1st installment....... 133 95
    Grading ancl curbing assessment south side lot, 1st installment...... 133 95
    General tax for 1875 against both lots.......................................... 48 67
    Sewer “ “ “ “ “ ............... 16 50
    Grading and curbing assessment north side lot, 2d installment......... 117 50
    “ “ “ “ south “ “ “ “ 117 50
    Penalty on general tax for 1874................................................. 11 54
    Total................'............................................................$967 36
    There were charged against the south side lot on the general duplicate for 1876 the following items:
    General tax against both lots....................................................$ 48 68
    Grading and curbing assessment north side lot, 3d installment......... 115 62
    “ “ “ “ south “ “ “ “ ......... 115 62
    -Total.........................................................................,.$279 92
    This amount was paid to the treasurer by Hackman, one-half January 7, 1877, one-half August 1, 1877; but both in January and July, 1877, plaintiff in error made a tender to the treasurer of the eutire general tax aud the special assessments levied upon the south side lot, which tenders were refused.
    The taxes charged against the south side lot on the duplicate for 1877 were not paid when due, and the lot was again sold at tax sale, January 21, 1879, to Hackman, who - paid therefor $98.71. All taxes and assessments subsequently charged against the lot have been paid by plaintiff in error.
    
      June 5, 1877, plaintiff in error filed his petition in the common pleas court of Cuyahoga county, against Joseph Hackman and Levi D. Benedict, auditor of the county. The petition alleged the invalidity of the tax sale and the reasons therefor; the tenders by the plaintiff to the treasurer of all taxes and assessments levied or chargeable upon the south side lot prior to any delinquency, and asked that the sale might be set aside and Hackman ordered to surrender the certificate of purchase; and the auditor restrained from giving a deed to Hackman; and for. other proper aud equitable relief.
    The answer denied the illegality of the tax sale, and set up the amounts paid by Hackman, to wit, $1,247.28, and claimed a lien on the lot, for that sum and 50 per cent penalty added, equaling $1,870.93, with interest on the amounts paid from the respective dates of payment; and averred that the lot on the north side of the street and the lot on the south side were in fact one parcel of laud. The reply denied that the north side lot and the south side lot were one tract of land; and denied that Hackman had a lien on the lot for $1,870.93, or for any sum; and averred that the plaintiff was ready and willing to pay Hackman whatever sum, if any, the court may find he has a right to receive and is a lien on the south side lot.
    The common pleas court held that both the tax sales to Hackman were invalid, but decreed that they should be set aside only on plaintiff’s paying to Hackman the sums he had paid, with interest from the respective datqs of payment; and also that Younglove and Hackman should divide the costs equally.
    The plaintiff appealed the case to the district court, and that court gave the same judgment; and plaintiff took a bill of exceptions, and now seeks a reversal of that judgment.
    
      James H. Hoyt and Wm. H. Gushing, for plaintiff in error.
    
      John F. Weh, for defendant Hackman.
    
      Kain, Sherwood § Bunts, for defendant Pelton.
   Follett, J.

Youuglove brought his action on June 5, 1877, to set aside the tax sale of January 18, 1876, and within two years from the time of the tax sale. The last tax sale was January 21, 1879, and when the action was pending. In opening streets and in making assessments by the foot front, the manner of making the same and the duties of the auditor are clearly laid down in Spangler v. City of Cleveland, 35 Ohio St. 469, where it is held: “1. The appropriation of land for the opening of a street, by a municipal corporation, through a parcel of land which stands upon the tax duplicate as a single lot or parcel, severs the same into two lots or parcels for the purposes of assessment, though it remains on the general tax duplicate as an entirety for purposes of taxation.

“2. "Where the same is assessed as two lots, and the assessments thus made are certified to the auditor of the county for collection, by order of the council, it is error to add the assessments made on each side of the street together, and charge the same upon the whole lot, as if no severance had been made.”

Here a part of the assessment was $3 per foot front ou the north side, and should have been entered on the tax duplicate against that side only.

Also in Corry v. Folz, 29 Ohio St. 320, the court held: “ Where a street has been improved and a special assessment by the front foot of the lot or parcels of laud abutting on it has been made to pay the expense of the improvement, each lot or parcel of land so abutting is separately liable for the amount assessed upon it, provided the amount does not exceed the maximum allowed by law.”

These cases show that it was error for the auditor to charge the assessments made on the north side of the street against the land on the south side $ and, as against the south side, such assessments, when so charged, were illegal. These illegal assessments were wrongly charged against the south side and caused the land to be sold, but rendered the sale void. Wallingford v. Fiske, 24 Me. 386; Hall v. Kellogg, 16 Mich. 135; Case v. Dean, 16 Mich. 12; Hubbard v. Brainard, 35 Conn. 563.

Where the tax sale is void or invalid the purchaser can not recover any penaltv. Johnson v. Stewart, 29 Ohio St. 498.

There is no doubt that the rule of caveat emptor applies to purchasers at tax sales, but we have a statute that defines what the owner of the land shall pay to remove the cloud of an invalid tax sale. The one in force when this sale was made (S. & C. 104, § 32), provides : “ If such sale should prove to be invalid on account of any irrégularity 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,” etc. As that statute is written, the context, the location of the words, and the punctuation, all and each lead to the conclusion that the words, “legally due thereon at the time of such sale,” qualify the preceding words, “ amount of taxes, interest, and penalty.” This case shows'the value of such a statutory limitation in preventing a city from evading the maximum limit of assessment.

The amounts that were specifically assessed upon the north side of the street, and that wmre afterward charged to the south side of the street, can not be included in the amount of laxes and interest and penalty that the purchaser shall receive from the proprietor of this lot. He should receive the general taxes and the special assessments levied on the south side that he paid, and interest on such payments from the respective dates of such payments; that is, the legal taxes on the south side and proper penalty and interest, but no illegal tax hr penalty.

The offer of Younglove to pay Hackman whatever sum or sums the court may find should be so paid by hini as a condition of the relief prayed for, may excuse a specific tenclei’, but we think the offer did not stop interest on the amount of taxes legally duo thereon that Hackman paid.

Judgment reversed and cause remanded.  