
    Taylor v. Hayes.
    
      Statutory construction — Presumption that former construction to he applied to superseding act — Taxation—Delinquent tax sale invalidated, how — Section 2880, Revised Statutes, and Section 572U, General Code — Statute of limitations— Section 11222, General Code — Six-year limitation runs from date of decree invalidating'sale.
    
    1. Where statute is superseded, presumption arises that construction applied to former should be applied to superseding enactment, even though language may have been changed, and construction will be changed only when legislative intent to do so is manifest.
    2. Under Section 2880, Revised Statutes of 1880, superseded by Section 5724, General Code of 1910, when construed together, tax sale could only be proved invalid by finding and decree of court.
    3. Six-year period of limitations under Section 11222, General Code, held not to run against lien for amount paid at delinquent tax sale, together with taxes and assessments, until decree declaring sale to be invalid, in view of Section 2880, Revised Statutes of 1880.
    (Decided March 2, 1925.)
    
      Error: Court of Appeals for Lucas county.
    
      Mr. F. M. Dotson, for plaintiff in error.
    
      Mr. M. G. Seeley and Mr. E. P. Buclcenmyer, for defendant in error.
   Young, J.

This action was commenced in the court of common pleas by Birchard A. Hayes to recover a balance due on two unpaid promissory notes, and to foreclose a mortgage on certain lots described in the petition. The petition alleges that the defendant, Henry C. Taylor, claims a lien or interest in the premises, and prays that he may be compelled to assert the same. Thereupon an answer and cross-petition was filed by the defendant, Taylor, setting up his lien on said premises, which was for an amount paid by him at a delinquent tax sale, which, together with taxes and assessments, amounted to $2,479.90. He avers that on May 21, 1919, he received the auditor’s delinquent land deed for the premises, and that on March 31, 1924, the deed was held to be invalid by the court of common pleas, but that the court expressly held that it in no wise undertook in said decree to determine the question of a lien for taxes, or any other claim of Henry C. Taylor, who was then the defendant in said cause.

To this cross-petition demurrers were filed by the plaintiff, Birchard A. Hayes, and the Security Savings Bank & Trust Company on the ground that the action was not brought within the statutory time and the cross-petition did not state facts sufficient to constitute a cause of action. These demurrers were sustained by the court, and, the parties not desiring to plead further, the answer and cross-petition was dismissed, and final judgment entered, to which order and decree Taylor prosecutes error.

Is the defendant, Taylor, barred, by the statute of limitations? The record shows that the date of the delinquent tax sale was January 15, 1909; the last payment of taxes was January 13, 1914; the auditor’s deed was received by Taylor on May 21, 1919; and on March 31, 1924, by a decree of the court, the title to these lots was held invalid by reason of the irregularities in the proceedings on the part of the official by whom the sale was made.

Section 11222, General Code, reads as follows: “An action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued.”

The case was argued on the theory that the six-year limitation applied, counsel for plaintiff in error contending that the statute began to run on the day of the decree of the court, namely, March 31, 1924, while counsel for defendant in error, Hayes, contend that the statute began to run either on January 15, 1911, two years from the date of the sale, at which time Taylor could have produced his certificate and received in lieu thereof a deed from the county auditor, or from the date on which money was paid.

Section 2880 of the Revised Statutes, being in force at the time of the tax sale, governs in this case. We quote 37 Cyc., 1468, as follows: “Questions concerning the effect of a tax sale as a transfer of title, or the right of the purchaser and the validity of his title, are to be determined by the law in force at the time the sale was made, which law, indeed, constitutes a contract between the state and the purchaser, the terms of which cannot be impaired by subsequent legislation.”

While Section 2880, Revised Statutes, was superseded by Section 5724, General Code, which is also cited by counsel, the two sections should be construed together. In the case of Village of Elmwood Place v. Schanzle, 91 Ohio St., 354, at page 357, 110 N. E., 922, 923, the court says:

“It is well settled that where the general statutes of the state are revised and consolidated there is a strong presumption that the same construction which the statute had had before revision should be applied to the enactment in the revised form, although the language may have been changed. In such case a court is only warranted in holding the construction to be changed when the intent of the legislature to make such change is clear and manifest.”

Section 2880, Revised Statutes, contains the sentence, “And if such sale should prove to be invalid,” while in Section 5724, General Code of 1910, the word “prove” is omitted. Construing these sections in the light of each other, we hold that such a sale can only prove invalid by a finding and decree of a court.

We quote St. Louis, I. M. & S. Ry. Co. v. Alexander, 49 Ark., 190, 4 S. W., 754: “The only method known to the law of proving the invalidity of a sale is by a judicial investigation, and it follows that his cause of action does not accrue until a court of competent jurisdiction has adjudged that the title is bad.”

We are therefore of the opinion that in the case before us the sale did not prove invalid until the court so declared it on March 31, 1924, at which time the statute of limitations began to run. It should be noted that the present Section 5724, General Code, was passed in 1917 (107 Ohio Laws, 739, Section 21), repealing the old Section 5724, and is therefore not applicable to the case at bar.

Whatever right the plaintiff in error, Taylor, has by way of lien is purely statutory, and under the sections quoted he is entitled to recover the amount paid for the lots, together with taxes and assessments, and the interest on each payment from the time it was made.

Judgment will be reversed and the cause remanded, with instructions to overrule the demurrers to the cross-petition, and for further proceedings.

Judgment reversed and cause remanded.

Richards and Williams, JJ., concur.  