
    Boyle, County Treas., Appellee, v. The Public Adjustment & Construction Co. et al., Appellants.
    (No. 31006
    Decided December 10, 1947.)
    
      
      Mr. Frank T. Gullitan, prosecuting attorney, Mr. Ralph W. Edwards and Mr. John F. Smolka, for appellee.
    
      Mr. William E. Rosenfeld and Mr. Alfred Palay, for appellants.
   Weygandt, C. J.

The operative facts are undisputed.

The controversy in this case is due to the fact that the defendant corporation has deeded two portions of its tract of land to its president and secretary respectively. Whether these transfers were with or without consideration is not disclosed by the record-.

Subsequent to these transfers the corporation and its president each entered into an undertaking to secure the payment of parts hut hot all the delinquent-taxes, assessments, penalties and interest.

The contention of the corporation and its president is that the foreclosure action should he dismissed as to the two portions of the tract now standing in their respective names, inasmuch as their undertakings secure payment of what they regard as their proportionate share of the total delinquencies. This-would leave the action pending as to only that portion of the tract standing in the name of the corporation secretary who has entered into no undertaking to secure payment of any part of the delinquencies.

The plaintiff county treasurer insists that the entire amount of the delinquencies is a lien on the entire tract and that hence he is entitled to foreclosure and sale of the entire tract, as asked in his petition. He states that his action was instituted under fávor of the provisions of' Section 5718 et seq., General Code, which were enacted prior thereto and relate to the foreclosure of tax liens on delinquent lands.

The defendant-appellants seek comfort from Section 5719, General Code,' which reads in part as follows:

“Each parcel affected by the court’s finding shall be separately appraised, advertised and sold unless the court orders any number or all of such parcels to be appraised, advertised and sold as a whole.”

However, the tract here involved was described in the foreclosure petition as one parcel, and the court ordered the tract to be appraised, advertised and sold as a whole. This was in conformity with the authority expressly conferred by the foregoing language of the statute.

The defendant-appellants rely, too, on the following provisions of Section 2672-1 et seq., General Coder-

Section 2672-1. “Any person, firm or corporation charged with or legally authorized or required by law •or decree of court to pay real property taxes and assessments which have became delinquent at or prior to the August or September settlement in any year, or any person, firm or corporation holding a lien upon such real property may at any time elect to pay the principal sum of such delinquent taxes and assessments as provided in this act, anything in the permanent statutes of this state relating to the payment of real property taxes, assessments, penalties .and interest thereon to the contrary notwithstanding. * * * ”

Section 2672-3. “Any such person being the owner of such real property or the holder of a lien thereon may at such times, in lieu of making a tender as authorized by section 2 [Section 2672-2, General Code] of this act, enter into a written undertaking in such form as shall be prescribed by the Bureau of Inspection and Supervision of Public Offices, to pay the full principal amount of such taxes and assessments, so delinquent, less penalties, interest and other charges for the year 1936 and prior thereto, and plus penalties, interest and other charges for the year 1937 and years subsequent thereto, in ten annual installments

However, cognate Section 2672-15, General Code, reads in part as follows :

“Nothing in this act shall affect the right of the prosecuting attorney to institute and complete proceedings to foreclose the lien of the state under sections 5718-3 and 5719 of the General Code of Ohio, nor the jurisdiction and power of the Common Pleas Court under said sections of the General Code unless prior to the date of sale, the costs incurred in foreclosure proceedings shall have been paid and an undertaking shall have been entered into pursuant to this act, covering the payment of such delinquent taxes and assessments.”

It is the contention of the defendant-appellants that under the provisions of this section the Court of Common Pleas and the prosecuting attorney lost their authority to proceed further with the foreclosure action as soon as the court costs were paid and undertakings given to secure the payment of part of the delinquencies.

This court does not so understand the language of this statute. It requires an undertaking “covering the payment of such delinquent taxes and assessments.” (Italics supplied.) There is nothing in this sentence or the context to indicate that “such delinquent taxes and assessments” means anything less than the entire amount of the delinquencies constituting a lien on the entire tract of land. These provisions are succinctly analyzed as follows in the opinion of the trial court:

“We believe it was the legislative intent as expressed in Section 2672-15, General Code, which permits the execution of an undertaking * * * to terminate further foreclosure procedure to require as a precedent thereto that the undertaking cover all of the taxes, assessments and charges against the entire property described in the petition. We further believe that the statute does not permit after an entire tract of land has been described in the petition, so advertised, and described in the decree, an under- • taking to be executed as to a part of such land, even though it may have been severed prior to the decree. If, however, the petition describes separate parcels as such and the property is so advertised and set forth in the decree then it is possible to enter into an undertaking with reference to any or all of such parcels prior to sale.”

If the legislative intent were construed otherwise, an unscrupulous owner of land could delay indefinitely such a foreclosure action by the simple device of successive transfers of portions of his property, thus compelling the court to render new decrees involving less and less land.

In the instant case the corporation and its president — the defendant-appellants — have the title to the entire choice frontage on Euclid avenue and are asking that the foreclosure action be dismissed as to them and their portions, thereby requiring the prosecuting attorney to proceed against the remaining portion which he insists is without ingress or .egress, except over the other portions, and is therefore of much less value. This hardly is a result contemplated by the General Assembly.

The defendant-appellants rely also on the provisions of Sections 2573 and 2651-1, General Code, relating to the duties of the county auditor and the county treasurer in apportioning unpaid taxes, penalties, interest and special assessments to various parte of a tract of land. However, these provisions do not affect the authority of the Court of Common Pleas or the prosecuting attorney to complete a foreclosure action under the circumstances here present.

It is insisted further that the action of the trial court is violative of Section 1 of the Fourteenth Amendment to the Constitution of the United States,, and Sections 2,16 and 19 of Article I of the Constitution of Ohio, but there is nothing in the record to substantiate this contention.

The Court of Appeals was not in error in affirming, the judgment of the Court of Common Pleas overruling the applications of the defendant-appellants, to vacate the alias order of sale.

Judgment affirmed.

Turner, Matthias, Zimmerman and Soi-ingbn, JJ.,, concur.

Hart and Stewart, JJ., dissent.

Stewart, J.,

dissenting. I dissent from the fourth paragraph of the syllabus and the judgment.

The order of events with which this case is concerned is as follows:

The Public Adjustment & Construction Company (hereinafter called défendant company) owned the entire tract of approximately 20 acres. The land was-certified delinquent in 1927, but the county auditor did not advertise the certification until 1936. The county treasurer did not file a foreclosure action to collect the delinquent taxes, until May 20, 1943. In the interim the tract was divided into three parcels, Robert Sill becoming the owner of a specific portion, Alex N., Sill becoming the owner of a specific portion, and the third specific portion remaining in tlie ownership of defendant company.

The title had been thus divided prior to the institution of the foreclosure action by the county treasurer and these three owners were, made parties defendant in such action.

The foreclosure action was heard on January 4,, 1944, and resulted in a decree in favor of the plaintiff, as prayed for in the petition.

On January 19, 1944, a precipe was filed and an order of sale issued.

On March 10, 1944, the order of sale was returned endorsed “not sold for want of bidders.”

On December 27, 1945, another precipe was filed and an alias order of sale was issued.

On September 18, 1945, the Split-Tax-Bills Act, Section 2573, General Code, became effective, and pursuant to such act the county auditor apportioned the lien and allocated to the • parts owned by defendant company and defendant Alex N. Sill the amount of taxes and assessments accrued against the parcel as a whole, proportionate to the values of such defendants ’ portions.

After the county auditor made his apportionment, the county treasurer furnished the two defendants with appropriate tax bills covering all delinquent- and current-tax assessments, together with interest and penalties thereon, apportioned in accordance with Section 2573, General Code.

Thereafter the defendant company and defendant Alex N. Sill entered into written undertakings, in accordance with Section 2672-3, General Code, to pay the full principal amount of delinquent taxes and assessments, plus the penalties, interest and other charges, on the land of which they are the owners, in ten annual installments, and paid the costs of the foreclosure proceedings as» provided in Section 2672-15, General Code.

As a result of these steps the defendant company and defendant Alex N. Sill owe no delinquent taxes or penalties on the land of which they acquired ownership prior to the instant foreclosure action, and it seems to me that they are entitled to have their mo-' tions granted to vacate the order for sale with reference to their lands.

There is no charge of fraud in this case and no proceedings have been had to set aside any of the things that have been done by defendants, the county auditor and the county treasurer. To deny the defendants the relief they ask when they have fully complied with the law, owe no delinquent taxes or-penalties on their parcels of land and have paid the costs in the instant foreclosure action, seems to me to constitute judicial repeal of legislation duly and lawfully enacted by the General Assembly.

Hart, J., concurs in the foregoing dissenting opinion.  