
    CUYAHOGA COUNTY, OHIO v. THE UNITED STATES
    [Cong. No. 7-59.
    Decided October 4, 1961]
    
      
      Frederick W. Frey for plaintiff. John T. Corrigan was on the briefs.
    
      Walter H. Williams, with whom was Assistant Attorney General Perry W. Morton, for defendant.
   WhitakeR, Judge,

delivered the opinion of the court:

This is a congressional reference case relating to a claim for taxes assessed by Cuyahoga County, Ohio, against two parcels of land in that county, which parcels, together with eleven others, were condemned by the United States on April 22, 1942, for a housing project known as Lake Shore Village.

This claim was previously considered by this court in Brennan, Treas., etc. v. United States, 139 Ct. Cl. 433, cert. denied 355 U.S. 890. We dismissed plaintiff’s petition on the ground that its claim was barred by the statute of limitations. The Supreme Court denied plaintiff’s petition for writ of certiorari.

Thereafter, H.E. 4583 was introduced in the House of Eepresentatives and was referred to the Committee on the Judiciary. This bill provides in pertinent part as follows:

That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, the sum of $110,189.79 to the county of Cuyahoga, Ohio, in full settlement of all claims against the United States. Such sum represents taxes, interest, assessments and penalties on parcels numbered 2 and 3 in housing project in the city of Euclid, Ohio, which were made by the authorities of the county of Cuyahoga, Ohio, and not reimbursed by the United States as agreed to by the Department of Justice:
$ ‡ $

This Bill was referred to this court by H. Ees. 309, 86th Cong., 1st Sess., passed on August 31, 1959, which reads as follows:

Resolved,. That the bill (H.E. 4583) entitled “A bill for the relief of the county of Cuyahoga, Ohio,” together with all accompanying papers, is hereby referred to the Court of Claims pursuant to sections 1492 and 2509 of title 28, United States Code; and the court shall proceed expeditiously with the same in accordance with the provisions of said sections and report to the House, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand, as a claim legal or equitable, against the United States, and the amount, if any, legally or equitably due from the United States to the claimant.

The question now before us is, has the plaintiff county any legal or equitable claim against the United States?

The condemnation proceedings against the property on which taxes and other charges had been assessed were instituted in the United States District Court for the Northern District of Ohio on April 22,1942, seeking to condemn “the fee simple absolute discharged of all liens, encumbrances, charges, claims, restrictions, and covenants' whatsoever.” Simultaneously, defendant filed a declaration of taking and paid into the registry of the court its estimate of just compensation.

On the following day, April 23, 1942, the District Court entered a decree vesting the fee simple title in the United States. The decree was recorded in the land records of Cuyahoga County on May 4,1942.

Defendant went into possession shortly after the filing of the declaration of taking. The housing project was completed in June 1944.

The amount originally deposited as just compensation for all the parcels condemned was $73,516.00, of which $21,450.00 was the amount deposited for parcel 2, and $13,450.00 was the amount deposited for parcel 3. These are the two parcels with which we are concerned in this case.

Although plaintiff was never a party to the proceedings in the District Court, defendant’s attorneys, who handled the condemnation proceedings, at all times had actual knowledge of plaintiff’s tax liens, and the plaintiff county had actual knowledge of the pendency of the condemnation proceedings. However, defendant’s attorneys negotiated settlement agreements with the record owners of parcels 2 and 3, without consulting plaintiff.

Pursuant to the settlement agreements, final judgments were entered by the court on February 16,1948. The judgments awarded just compensation for the two parcels at the amounts agreed upon in the settlement agreements: $30,-000.00 for parcel 2, and $20,000.00 for parcel 3. Deficiency judgments were entered against the United States in tbe amounts of $8,550.00 for parcel 2, and $6,550.00 for parcel 3, which amounts were paid into the court.

On November 29, 1945, the court had entered an order for the payment to the city of Euclid of amounts due for special assessments for the year 1945. These amounts were $3,-480.96 for parcel 2, and $1,811.30 for parcel 3. No other distribution was made until the court’s order of April 8, 1948, on which date the court entered an order as to parcel 2, reading as follows:

This cause came on to be heard upon the application of the United States of America, petitioner herein, and it being shown to the Court that the right to the full fee simple title in and to Parcel 2 is now vested of record in the United States of America;
That by virtue of a stipulation and final judgment thereon, on file in this court, the agreed compensation for the taking of said Parcel 2 is the sum of $30,000.00 which has theretofore been deposited into the registry of this court;
That by virtue of a previous order of distribution the sum of $3,480.96 has been distributed from said funds, leaving on deposit the sum of $26,519.04 which should now be distributed to the persons entitled thereto.
It IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Clerk of this Court be and he is hereby authorized to issue a check in the sum of $26,519.04 to Ermino DeFranco, Antonio DeFranco and Mary Marino, c/o Attorneys Todia, Gordon and Sweeney, Terminal Tower Building, Cleveland, Ohio.

A similar order was issued as to parcel 3. In accordance with those orders the full balance of the money on deposit as compensation for parcels 2 and 3 was distributed to the record owners.

Plaintiff has received nothing for the taxes, penalties and assessments on parcels 2 and 3, except for the amount of $3,480.96 for special assessments on parcel 2, and $1,811.30 for special assessments on parcel 3.

Plaintiff claims it is entitled to recover $110,189.79, which it alleges is the amount of taxes, penalties, assessments and interest due on parcels 2 and 3 as of December 31, 1956, the date the United States conveyed the property to the city of Euclid, at which time it once more became subject to taxation.

The total amount of plaintiff’s lien on each parcel on April 22, 1942, the date .of the taking, including delinquent taxes, special assessments, penalties and interest, subsequently ascertained taxes and future installments of special assessments were as follows:

Has the United States any legal obligation to plaintiff? It is clear that it has not, both because its claim is barred by the statute of limitations, and because the payment into court by the United States of the amount determined to be just compensation for the land taken completely discharged the United States of liability to everyone claiming an interest in the land. United States v. Dunnington, 146 U.S. 338, 350, et seq. The case cited so completely supports the statement made, and it has been followed so uniformly by all the authorities, that we do not further discuss defendant’s legal liability.

For the convenience of the Congress, we quote the following from the Supreme Court’s opinion in the Dwmington case:

2. A further question remains to be considered with regard to the proceedings taken after the payment of the money into court. It is insisted by the claimants that it was the duty of the United States, as plaintiffs in the condemnation proceedings, to take proper steps for the payment of the sum fixed by the appraisers to the persons entitled thereto, by apportioning the sum between the tenants of the life estate and the heirs of Dun-nington, or by the investment of the entire amount in interest bearing securities, for the benefit of the tenants of the life estate, until its termination, and for the ultimate delivery of the same to the heirs. It is a necessary deduction from our conclusion upon the other branch of the case that the appraised value of the property represents the whole fee, and the interests, both present and prospective, of every person concerned in the property, and such are the authorities. Tide Water Canal Co. v. Archer, 9 G. & Johns. 479, 525; Ross v. Adams, 4 Dutcher (28 N.J. Law), 160. The money, when deposited, becomes in law the property of the party entitled to it, and subject to the disposal of the court. In re New York Central &c. Railroad, 60 N.Y. 116; South Park Commissioners v. Todd, 112 Illinois, 379.
It is evident that the gist of the petitioners’ complaint in this connection lies in the order of the Supreme Court of the District of Columbia of April 3, 1873, directing the payment of the entire appraised value of the lot to the heirs of Martin King, the vendee of Shepherd, who had purchased the life estate of Dunnington under the confiscation proceedings. Neither Dunnington, who was still living, nor his heirs, the present claimants, appear to have intervened in the condemnation proceedings, or to have raised a question as to the propriety of this payment. The proceedings, however, appear to have been carried on in strict conformity with the act, which required the Secretary of the Interior, in case he should be unable to purchase at private sale, to apply to the court for an appraisement, and in case the owner neglected to demand of him the appraised value within fifteen days, to pay the same into court, subject to being paid out to the persons entitled to it. Assuming that the payment of the entire amount to the heirs of King was a mistake, it is difficult to see how the United States can be held responsible for it. The courts of the United States are in no sense agencies of the Federal government, nor is the latter liable for their errors or mistakes; they are independent tribunals, created and supported, it is true, by the United States; but the government stands before them in no other position than that of an ordinary litigant. * * * What was the United States to do after the deposit was made, to protect itself ? It had discharged its entire liability by the payment into court, and was not entitled to notice even of the order for the distribution of the money. If the Attorney General had appeared, it might have been charged that he was a mere interloper, and that only the owners of the land were interested in the distribution of its proceeds. We are not without authority upon this subject. * * * We think the United States discharged its entire duty to the owners of this property by the payment of the amount awarded by the commissioners into court, and that, if there were any error in the distribution of the same, it is not chargeable to the government.

Defendant’s legal liability was to pay just compensation for the land taken. The payment of that amount into court discharged it of liability to everyone claiming an interest in the land. This, of course, included plaintiff. United States v. 25.936 Acres of Land, etc., 153 F. 2d 277; Washington Water Power Co., v. United States, 135 F. 2d 541; Cobo v. United States, 94 F. 2d 351; 2 Lewis, Eminent Domain, 3d Ed., p. 1253; 1 Nichols, Eminent Domain, 2d Ed., pp. 707, 708.

Nor is plaintiff entitled to recover under any of the principles of equity jurisprudence. However, we have said in prior cases referred to us by Congress, to report the amount “legally or equitably due”, that we understood Congress to have used the word “equitably” in the “sense of broad moral responsibility, what the Government ought to do as a matter of good conscience.” B. Amusement Co. v. United States, 148 Ct. Cl. 337, and cases there cited. See also Burkehardt v. United States, 113 Ct. Cl. 658, 667; Lamborn v. United States, 106 Ct. Cl. 703. We shall now consider the matter from this standpoint.

Ordinarily the Government is not legally responsible for the negligence of its officers and agents. This is based on sound principles of public policy. Its broad moral responsibility therefor, if any, in this case rests on the negligence of its attorney in preparing for the signature of the District Judge, before whom the condemnation proceedings were pending, an order directing the payment of the balance of the money deposited by the United States, as just compensation for the property taken, to the record owners of the property, without first having satisfied the claim of plaintiff for taxes and special assessments against the property.

The County was not made a party to the condemnation proceedings, but it had full knowledge of them. Notwithstanding this knowledge, the County’s attorneys took no action to protect its interests, except to write letters to Mr. O’Neil, the Special Assistant United States Attorney, inquiring about the progress of the proceedings, and some telephone calls and personal conversations with him.

On December 6, 1944, an assistant prosecuting attorney for the County wrote Mr. O’Neil wanting to know “What arrangements, if any, have been made to pay the County Treasurer the amount due him for taxes.” He also asked for a conference at Mr. O’Neil’s convenience. About a year later the same assistant prosecuting attorney wrote Mr. O’Neil as follows:

Referring to our letter of December 6, 1944, and our subsequent telephone conversations relative to the payment of taxes due on the premises in caption, can you now advise us when these taxes will be paid ? We understand that $21,450.00 have been deposited in Federal Court and from this amount the taxes were to be paid. Our most recent telephone conversation was October 22, 1945, at which time you informed the writer that you would check your files and advise this office.
Your co-operation in this matter will be greatly appreciated.

In reply, Mr. O’Neil wrote him offering to make a partial payment, since, he said, the amount on deposit in the court was insufficient to pay the taxes in full. (Plaintiff’s exhibit 4.) In reply the County’s attorney asked that payment be made to the County Treasurer. He was referred to a Mr. Edwards as to how the payment should be applied.

Mr. O’Neil did not reply to this letter until after the County’s attorneys had written him several times. Finally, on February 18,1946, he replied as follows:

At the present time no adjustment of delinquent taxes on the above property has been made. This tract of land is on the trial list for cases to be held in March of this year, and at that time a jury verdict will decide what the amount of just compensation is.
Since the settlement of this case will take place at a fairly early date, we believe the best thing to do is to wait until we know the jury verdict before attempting to make any adjustment of taxes. The amount which is on deposit in court now is not enough to pay all the delinquent taxes and it may be that the jury verdict will be in an amount which will completely cover all taxes.

In response to a later inquiry of the County’s attorneys, Mr. O’Neil wrote that the case had been postponed, but “As soon as any developments are bad in this case wbicb will enable us to pay the taxes, you will be advised.”

Prior to the distribution of the money on deposit the County attorneys wrote Mr. O’Neil two other letters inquiring about the status of the matter, but the record does not show what reply, if any, was made. After the distribution, in apparent ignorance thereof, the County’s attorneys continued to write Mr. O’Neil until May 1, 1950, asking for payment. Finally, on May 9, 1950, Mr. O’Neil wrote the County’s attorney in part as follows:

I have written the Public Housing Administration and the Cleveland Metropolitan Housing Authority to find out if they will not assist in clearing up this tax deficiency.
While the record shows service, there was no answer on behalf of the County setting up this tax lien, although there were letters setting out the amount which were not apparently compared in computing the whole amount due. This office did remit $37,000.00 in taxes, in six orders, copies of which are enclosed. Stipulations as to settlement were signed with the property owners and their counsel, Messrs. Todia, Sweeny & Gordon, and other law firms representing the parties.
This office must admit the error of presuming that these orders covered all the taxes due before disbursement was made. I do not believe recovery of the amount so disbursed to these owners can be easily made and further the whole amount disbursed still leaves a large deficiency.
* * * * *
I regret that this tax deficiency has been of such long standing but we will use every effort to see if we cannot soon meet the principal amount due.

Parcels 2 and 3, involved in this case, were a part of the 13 parcels of land condemned for a housing project in the city of Euclid. All were condemned in one action. All taxes, penalties and special assessments on all parcels, except 2, 3 and 5, were paid out of the money deposited by the United States with the Clerk of the court. For some reason, for which there is no satisfactory explanation, they were not paid on parcels 2, 3 and 5. The money on deposit for these parcels was paid to the record owners of the property. Later, however, the record owner of parcel 5 paid the taxes due tliereon. Except for tlie special assessments of $3,480.96 and $1,811.30, none of the taxes or other charges on parcels 2 and 3 have been paid.

As stated heretofore, the money was paid out on order of the court. However, the Special Assistant United States Attorney drew the order of disbursement and presented it to the District Judge for signature. The Special Assistant United States Attorney’s name appears on the order under the word “Approved”. Only he formally approved it. It was not approved by attorneys for the county.

About a month after the distribution, the Chief Deputy County Treasurer learned of the distribution and he informed Mr. Edwards, the Chief Assistant Prosecuting Attorney thereof, but apparently Mr. Edwards did not pass this information on to his subordinates who were supposed to be handling the matter, because there were put in evidence six letters from them to the Special Assistant United States Attorney asking that the money on deposit in the United States District Court be paid to the County. There was no money on deposit in the court when these letters were written.

The county’s attorneys were lacking in diligence. Prudence required that they intervene in the condemnation proceedings and protect the county’s interests, especially after they had been advised that the money on deposit was not sufficient to pay all taxes and other charges due. At no time did they ever go to the District Court and examine the records in the case. Instead, they relied on writing letters and on telephone calls, and perhaps some conversation with the Special Assistant United States Attorney. Had they properly protected the county’s interests, the money deposited by the United States would have, of necessity, been paid to the county.

On the other hand, the Special Assistant to the United States Attorney should have made the county a party to the proceedings in the first instance, and especially after he learned that the county’s claim exceeded the amount on deposit. He should have consulted the county before agreeing on a valuation of the property. And, above all, he should have secured the approval of the county to the proposed order of distribution. How he could have failed to do so, with full knowledge of the claims of the county, “passeth understanding”.

Both the lawyers for the county and the lawyers for the United States were negligent. Of course, it was not the legal duty of the Special Assistant United States Attorney to protect the interests of the county, but he knew its attorneys were relying on his assurances that he would, and honorable and fair dealing required him to do so. How he could have forgotten about the county’s claim, we do not see.

Applying the broad principles of moral responsibility, in which sense we use the word “equitable”, and considering the lack of diligence of the attorneys on both sides, we think the equitable solution of this matter would be for the United States to pay to the county one-half of the $44,707.74 disbursed to the record owners.

This opinion, together with the findings of fact which follow, will be certified by the clerk to the Congress pursuant to H. Bes. 309, 86th Congress, 1st Session.

It is so ordered.

MaobeN, Judge (Bet.); Dureee, Judge, and Laramore, Judge, concur.

JoNes, Chief Judge,

concurring in part :

I would recommend that the plaintiff be paid the amount of the taxes up to April 22,1942, the date when the defendant requisitioned the property, limited to the amount which was distributed to the wrong parties. In other words, I feel that plaintiff on the basis of equity should be paid $44,707.74 rather than half that amount as recommended by the majority.

The tax liens were fixed and of record when the Government requisitioned the property. Neither the county nor its officials were made a party to the requisition proceedings. The taxes were a first lien and constituted a direct interest in the property. These taxes have not been paid on the parcels in question.

It is true some of the county officials knew that the proceedings were pending. It is also true that the defendant’s officials knew and also had official record notice of the first lien taxes.

There is considerable conflict in the testimony as to how much conversation occurred, as to what promises were made, and as to whether assurances were given that the county’s rights would be protected in final distribution.

All this points up the wisdom of having matters affecting land reduced to writing. Since the Statute of Frauds was enacted in England hi 1677, practically every civilized country has enacted laws which provide that not a spoonful of dirt may be transferred in ownership from one party to another except in writing. Otherwise there could be no quieting of title in anyone so long as human beings possess an imagination, defective memories, and a degree of cupidity.

Since the issues are the same, in so far as the equities are concerned, I repeat a portion of what I said when the case was before us on the original trial.

“To deny [full] recovery in this case is unthinkable. Such action would directly violate the Fifth Amendment in two respects. It would deprive plaintiff of property without due process of law, and it would involve the taking of private property without just compensation.

That can’t be done against an individual, much less against a state.

The defendant admits that neither the state, county, nor any of their officers or agents were made parties to the proceeding. How can they be bound ?

The defendant says that some of the state or county officers knew about the proceeding. Are we to have citation by rumor or by the uncertain word of the village gossip ? There are some of the forms of procedure that are vital and cannot be supplied by the conflicts and uncertainties of oral testimony.

These taxes were a first lien on the land. As was stated in Monroe v. Doe, 7 Ohio 262, 265:

* * * The state has a lien upon all land not exempt from taxation, which is calculated to be perpetual and which cannot be affected by any sale or transfer * * *. It can be removed in no other way than by payment of all taxes, penalties and interest due on the land.

In volume 24 of the original edition of Ohio Jurisprudence, at p. 100, is found the following language:

It is a fundamental proposition that persons having rights in land cannot be affected by a judgment or decree taking such land unless they are parties to the proceedings. [Citing Meyers, Fall & Collins, et al. v. Hewitt, 16 Ohio 449.]

As in practically all states, a tax lien is a first lien and is superior to all other liens.

We quote from 2 lewis eminent domain § 524 (3d Ed., 1909):

In Nebraska it has been held that a tax lien in favor of the State was not divested by a condemnation for railroad purposes * * * lien holders are owners within the statute and * * * must be made parties and * * * to divest their interest. [Citing State v. Mo. Pac. Ry. Co., 75 Neb. 4, 105 N. W. 983.] * * * In any case the lien would undoubtedly follow the fund and could be enforced against the fund * * *. [Citing In re Sleeper, 62 N. J. Eq. 67, 49 Atl. 549.]

We quote from section 538 of the same authority:

If a necessary party is omitted, the proceedings will be nugatory as to such party. But as a general rule such an omission does not vitiate the proceedings as to those who are parties, nor can the latter complain of such omission. [Citing cases.]

The author then states the general principles gleaned from a review of a great many eminent domain cases. These include, inter alia, that the Fifth Amendment should be liberally construed for the protection of private rights; that the word property includes every valuable interest which a person can have in or appurtenant to land; and that due process of law requires that the owner of any such right or interest should have a reasonable opportunity to be heard on the question of compensation before he can be deprived thereof for public use.

It has been held that payment to one other than the person entitled thereto is not a defense. Palo v. Rogers, 116 Conn. 601, 165 Atl. 803 (1933).

The courts have uniformly held that where property is subject to a tax lien, the payment of compensation money into tbe registry of the court does not extinguish the tax lien, but the lien is merely transferred from the land to the fund. Board of Capitol Managers v. Brasie, 72 Colo. 153, 210 Pac. 63 (1922); Ross v. Kendall, 183 Mo. 338, 81 S. W. 1107 (1904); Carpenter v. City of New York, 44 App. Div. 230, 60 N.Y. Supp. 633 (1899).

We quote from the Brasie case, supra, the following:

The money in the registry of the court stood in the place of the land, and the court below fell into error in not so holding. So much of the funds in the hands of the clerk as may be necessary should be applied to the payment of the special improvement tax, with accrued interest thereon, and the remainder, if any, should be paid to the respondent.

* * * A. F. O’Neil, Special Assistant United States Attorney, testified that he had paid millions of dollars to the county authorities, on other parcels of land and in other cases, and in no case was the county made a formal defendant. This procedure, therefore, was the customary and established way of handling such matters between county and Federal authorities. The tax lien, being a first lien, always followed the proceeds and became a lien on any fund that might be paid into court by way of compensation.

Witnesses on both sides in this case testified that in this particular county it often happens in Federal and state condemnation cases that the county is not made a party defendant, * * *.

^ ‡ ^ ‡

The first overt act by the Government which gave any indication that the Federal Government intended to refuse to recognize the validity of the tax liens was when the orders of distribution were entered on April 8,1948. Prior to that date the county had been repeatedly assured by letter of the Special Assistant United States Attorney in charge of the condemnation proceedings, Mr. O’Neil, that the taxes would be paid out of any funds arising out of a jury or court verdict entered on final trial and disposition of the case. The funds were distributed without regard to the valid existing tax liens, and without provision for their payment. Again the county officials were not notified and the rights of the plaintiff were completely ignored. “Upon wbat meat doth, this our Caesar feed, that he is grown so great” as to' be able to ignore the established rights of a subdivision of a sovereign state ? One is reminded of the story of the cannibal who is said to have claimed title to a piece of land on the ground that he ate the owner.

% Hi * # #

The money was paid out to the former owners under an ambiguous agreement that apparently led such owners to believe that they were being paid these amounts for their equity. At the time these ambiguous agreements were made the Federal officials were fully aware of the fact that the sums that they were agreeing upon and paying were insufficient to cover the tax liens. In spite of all this, the money was paid out without a word being said to the plaintiff, who held a first lien on the fund. Whatever else may be justified, the defendant would be liable for such of the valid unpaid taxes that were in effect at the time the declaration of taking of the land was first made, to the extent at least that the funds unjustly distributed would have been sufficient to absorb such taxes.

The facts shine through this whole record that the Federal officials apparently feared to let the rate of compensation as to this suburban property be fixed at a regular trial and deliberately settled with the equity owners for the purpose of leaving the plaintiff without any enforceable rights.”

Stripped of its excess baggage and verbal persiflage, the bald facts remain — standing apart and shining like a cathedral — that the Government took the property upon which an official unit of a sovereign state had a valid lien; that the county was not made a party to the suit; that the funds were paid out by Federal officials on orders approved by the United States District Court, and that the first lien was bypassed and the county left holding the bag.

The majority opinion quotes extensively from the case of United States v. Dunnington, 146 U.S. 338.

A careful reading of that case shows that it is utterly inapplicable to the facts here presented. If the time ever comes when it properly applies it should of course be given due consideration, but in its essence it has no more relevancy to the issues presented here than has Homer T. Wilson’s lecture on “America’s Uncrowned Queen.” The Dwmmgton case was “a proceeding by the heirs at law of a person formerly in rebellion against the United States to recover the value of a lot of land, which had first been confiscated as enemy’s property, and then condemned, in the hands of the purchaser, for the use of the government and for the enlargement of the Capitol grounds. * * * Under the confiscation act of July 17,1862,12 Stat. 589, c. 195, the lot had been seized as the property of a public enemy and sold to Shepherd.”

In 1872, the Congress passed a special act which authorized the Secretary of the Interior to make a purchase of additional property for the Capitol grounds and to ask the “Supreme Court of the District of Columbia” under such rules as it may adopt to make a just and equitable appraisement of the several interests of each and every owner of real estate, etc.

The act was a special one having to do largely with the right of heirs in property that was confiscated from owners some of whom had been classed as “enemy aliens.”

That entire case grew out of one of the most tragic experiences in our Nation’s history and was governed by special acts. The final decision from which the majority opinion quotes was not written until 1892, 30 years after the property was confiscated.

The Supreme Court held that “the presumption is, that due and legal notice was given of the proceedings, the ap-praisement was valid and binding upon Dumiington and his heirs.” (p. 350) Clearly the decision had no application to the case at bar.

By every tenet of fair play that I have known or read about from my youth to this good hour, Cuyahoga County should be reimbursed to the extent of $44,707.74, and I so recommend.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:

1. This is a congressional reference case which relates to the subject matter previously considered by the Court of Claims in a decision dated July 12, 1957 (139 Ct. Cl. 433). The majority opinion held that the payment of just compensation pursuant to a decree of the United States District Court for property taken “fully discharged the United States of its obligation, at least as to all claims not asserted within six years of the taking.” The plaintiff’s petition before the Court at that time was dismissed, and a petition to the Supreme Court for a writ of certiorari was subsequently denied (355 U. S. 890).

2. H.E. 4583, introduced in the House of Eepresentatives and referred to the Committee on the Judiciary, reads as follows:

For the relief of the county of Cuyahoga, Ohio.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,, That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, the sum of $110,189.79 to the county of Cuyahoga, Ohio, in full settlement of all claims against the United States. Such sum represents taxes, interest, assessments and penalties on parcels numbered 2 and 3 in housing project in the city of Euclid, Ohio, which were made by the authorities of the county of Cuyahoga, Ohio, and not reimbursed by the United States as agreed to by the Department of Justice: Provided, That no part of the amount appropriated in this Act shall be paid or delivered to or received by any agent or attorney on account of services rendered in connection with this claim, and the same shall be unlawf ul, any contract to the contrary notwithstanding. Any person violating the provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not exceeding $1,000.

3. H. Ees. 309, agreed to by the House of Eepresentatives on August 31, 1959, reads as follows:

Resolved,. That the bill (H.E. 4583) entitled “A bill for the relief of the county of Cuyahoga, Ohio,” together with all accompanying papers, is hereby referred to the Court of Claims pursuant to sections 1492 and 2509 of title 28, United States Code; and the court shall proceed expeditiously with the same in accordance with the provisions of said sections and report to the House, at the earliest practicable date, giving such, findings of fact and conclusions tliereon as sliall be sufficient to inform the Congress of the nature and character of the demand, as a claim legal or equitable, against the United States, and the amount, if any, legally or equitably due from the United States to the claimant.

4. Under date of October 16,1959, the Court allowed plaintiff’s motion to transfer to this case “all papers, documents, pleadings, briefs, record, reports, judgment and opinion in the case of Frank M. Brennan, Treasurer of Cuyahoga County vs. The United States (No. 142-53 in the files of this Court * *."

The only new or additional evidence which has been added to the record since proof was closed in the prior action consists of four exhibits offered and received in evidence in the course of a pretrial conference convened April 11,1960, and a stipulation made on the record during the pretrial proceedings that the Lake Shore Village property was conveyed by the United States to the City of Euclid on December 31, 1956, pursuant to Section 407 (c) of the Act of August 7, 1956, 70 Stat. 1091.

5. On April 22, 1942, the defendant filed a petition in condemnation and a declaration of taking in the action entitled United States of America v. Certain Parcels of Land in the County of Cuyahoga, State of Ohio, and Peter Frank, et al., Civil No. 21234, in the United States District Court for the Northern District of Ohio. The action was filed to acquire the land in the City of Euclid, County of Cuyahoga, described in the petition and declaration of taking for the purpose of providing housing in connection with national defense activities. The petition stated that the estate or interest which defendant sought to acquire in the land was “the fee simple absolute discharged of all liens, encumbrances, charges, claims, restrictions, and covenants whatsoever ; * * The declaration of taking stated that “The estate taken for said public use is the full fee simple title in and to said lands.” When the declaration of taking was filed, the defendant deposited in the registry of the court the amount estimated to be just compensation for all interests in the land. The declaration of taking described 13 parcels of land, and the total amount deposited in the registry of the court, as just compensation for all of the parcels was $73,516.00. The amount deposited as just compensation for parcel 2 was $21,450.00, and the amount deposited for parcel 3 was $13,450.00. On April 23, 1942, the court entered a decree on the declaration of taking determining that the title to the land in fee simple absolute was vested in the United States. The decree was recorded in the land records of Cuyahoga County on May 4, 1942, in Yol. 5439, p. 243.

6. Neither the State of Ohio, County of Cuyahoga, nor any official of the state or county was formally named as a party in Civil Case 21234, although they had full knowledge of the condemnation proceedings.

The officials of Cuyahoga County, Ohio, had actual knowledge of the pendency of the condemnation suit involved in this action. In 1942 the Comity Treasurer’s office furnished the attorneys representing the United States tax bills for the land involved in this litigation. The United States disputed the amount the County was claiming. As a result of this controversy over the validity and the correct amount due, a Mr. A. F. O’Neil, who was handling the matter for the defendant, urged the Auditor, the County Prosecutor, the Board of County Commissioners, the Treasurer, and a representative of the State Tax Commission to come into the condemnation proceedings and to set up their interest in the property, but to no avail. An action to recover the taxes was first asserted by the County of Cuyahoga in its petition filed in this Court on April 13, 1953. This was more than ten (10) years after the County had actual knowledge of the pendency of the condemnation proceedings.

7. The persons named in the declaration of taking as the owners of parcel 2 were Ermino and Antonio DeFranco and Matilda Marino; the persons named as the owners of parcel 3 were Frank M. Fertig and Freda Fertig. Answers were filed in this case claiming that the values of parcels 2 and 3 were greater than the Government’s estimated values, the amounts which had been deposited in the registry of the court for parcels 2 and 3.

8. (a) On April 22, 1942, there were delinquent taxes, special assessments and penalties on parcels 2 and 3 which were liens on the land as follows:

Taxes and special assessments for the tax year 1942 were a lien on April 22, 1942, but the amounts were unknown at that time. The amounts were subsequently ascertained to be $1,840.00 as to parcel 2 and $1,015.39 as to parcel 3. In addition, there were special assessments which were a lien on the land for the full amount of the assessments when levied, but payable in annual installments after 1942. These were as follows:

From the foregoing the total amount of the lien on each parcel on April 22, 1942, including delinquent taxes, special assessments, penalties and interest, subsequently ascertained taxes and future installments of special assessments, was as follows:

(b) Plaintiff has furnished a revised statement of delinquent taxes, special assessments, and penalties with respect to the land taken by the United States for the Lake Shore Village housing project. This revision, contained in plaintiff’s Exhibit B, brings the computations through December 31, 1956. The following chart shows the amount of taxes and special assessments for the years indicated and the penalties and interest to December 31, 1956:

9. The amounts due for special assessments on parcels 2 and 3 for 1945 and subsequent years were paid directly to the City of Euclid by the clerk of the district court from the amounts deposited as estimated just compensation for those tracts pursuant to an order for distribution filed November 29, 1945. The other taxes, penalties, and special assessments were not paid from the amounts deposited in the registry of the court or otherwise.

10. All taxes, penalties, and special assessments which were a lien on the land on April 22,1942, were paid to the County of Cuyahoga or the City of Euclid as to all parcels included in Civil Case No. 21234, except as to parcels 2, 3 and 5. Par-fcial payment of the amounts which were liens on parcels 2, 3 and 5 were paid by the clerk of the court to the County or to the City of Euclid from the funds on deposit in the registry of the court. The following payments were made from the funds on deposit in the registry:

(1) Under a final judgment and order of distribution filed November 20, 1942, the County Treasurer was paid $3.37 for taxes on parcel 10.

(2) Under a final judgment and order of distribution filed November 30,1942, the County Treasurer was paid $3,907.60 for taxes on painel 5.

(3) Under an order for distribution filed February 10, 1944, the County Treasurer was paid $231.27 and the City of Euclid was paid $483.73 for special assessments on parcel 5. Subsequently, the county and the city returned the checks for these amounts for the reason that they did not represent full payment and the county and city would not accept partial payment. The checks were re-deposited in the registry of the court.

(4) Under an order for distribution filed February 10, 1944, the County Treasurer was paid $14.74 for taxes on parcel 9.

(5) Under an order for distribution filed July 31, 1945, the County Treasurer was paid the following for taxes:

Parcel 1_ $7,160. 31
Parcel 4_ 1, 532. 87
Parcel 6_. 4,376.78
Parcel 8_. 8, 864.26
Parcel 10. 3. 94
Total_$21,938.16

(6) Under an order for distribution filed July 26, 1946, the County Treasurer was paid $5,582.31 for taxes on parcels 7,7 A, 7B and 7C.

(7) Under an order for distribution filed August 12,1946, the County Treasurer was paid $36.71 for taxes on parcels 7,7A, 7B and 7C.

(8) Under an order for distribution filed November 29, 1945, the City of Euclid was paid the following for special assessments:

Parcel 2_ $3,480.96
Parcel 3_ 1, 811. 30
Parcel 4_ 209. 95
Parcel 5-431. 91
Parcel 6-145.91
Parcel 7-266. 56
Parcel 8-507. 74
$6, 854. 33

11. Although, a special assessment was a lien for the full amount of the assessment when made, it was payable in annual installments over a period of years. The county officials could charge on the tax duplicates and collect only the annual installments as they became due. Under Ohio law, however, the political subdivision, here the City of Euclid, could accept payments of annual installments not yet due. The political subdivision notified the county auditor of such payments and the future installments were then canceled. Payments to the City of Euclid in Civil Case No. 21234 were accepted by the City of Euclid and the county under this procedure. Installments for the tax years 1945 and thereafter on Parcels 2, 3, 5 and others were paid directly to the City of Euclid and, therefore, canceled on the Auditor’s Assessment records and never charged to the tax duplicate. The comity makes no claim for the installments payable in 1945 and subsequent years on parcels 2 and 3, because those installments were paid to the City of Euclid.

12. On June 1, 1939, the County Auditor issued a delinquent land tax certificate covering the DeFranco property, which later became parcel 2 in Civil Case No. 21234. On September 22,1939, the County Prosecutor filed an action in the Court of Common Pleas of Cuyahoga County on behalf of the County Treasurer to foreclose on the DeFranco prop-rety for non-payment of delinquent taxes. A journal entry of foreclosure was filed on October 13, 1941. No further action has been taken in that case and it is still pending in the Court of Common Pleas.

13. In June 1942, shortly after the filing of the petition and the declaration of taking in Civil Case No. 21234, Mr. Frank M. Brennan, Chief Deputy County Treasurer of Cuyahoga County, subsequently the Treasurer and the plaintiff in the former action in this court, was aware of the legal description of the entire area acquired by the Government, and the parcels included in the case. He also knew the individuals who owned each parcel of land and the amount of taxes due on each parcel. In 1942, Mr. Brennan knew that the county had not been joined as a party in Civil Case No. 21234 and he notified Mr. Kalph W. Edwards, Chief Assistant Prosecuting Attorney, for the purpose of asserting the county’s claim. The first statement of the county’s complete claim was in a letter dated July 1, 1952, from Assistant Prosecuting Attorney Smolka to Special Assistant United States Attorney O’Neil. Mr. Brennan expected that taxes would be paid to the county out of the funds on deposit in the registry of the court, but he did not check the court records to determine whether the funds on deposit were sufficient to pay the amounts claimed by the county.

14. Mr. Kalph W. Edwards was the Chief Assistant Prosecuting Attorney of Cuyahoga County from 1942 until about 1950 in charge of the Civil Division of the County Prosecutor’s office. He was responsible for representing the county in condemnation actions. In 1942, Mr. Edwards knew that the county had claims for taxes on the parcels included in Civil Case No. 21234 and that the county had not been joined as a party. On June 14, 1945, an order was entered in Civil Case No. 21234 with respect to eight parcels of land, including parcels 2 and 3, which provided:

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that said land, * * * [is] exempt from all taxes, assessments, penalties or process levied after the year 1942 and for as long as title to said land shall be retained by the United States of America and the use of said land shall serve a public benefit, and that any and all taxes, assessments and penalties levied by the taxing authorities of Cuya-hoga County, Ohio, after the year 1942 are null and void and held for nought and the taxing authorities of Cuya-hoga County, Ohio, are forever barred from collecting same.
(s) R. N. WilkiN, United States District Judge.
Approved:
(s) A. F. O’Neil, # Special Assistant U. S. Attorney.
(s) Frank T. Cullitan, Prosecuting Attorney by R. W. Edwards, Attorney.

R. W. Edwards whose signature appears on the order is the same person as Ralph W. Edwards.

15. Mr. Julius J. Badzik is an Assistant Prosecuting Attorney of Cuyahoga County. From May 1943 until 1946 he was assigned the responsibility of collecting the delinquent taxes on the Fertig property, which is parcel 3 in Civil Case No. 21234. The collection of those taxes had been pending in the County Prosecutor’s office since 1939 or earlier, but no action was ever filed to foreclose on the property. Mr. Badzik’s efforts to effect collection consisted of several telephone conversations with an attorney for the former owners in 1944 and 1945, a telephone conversation with one of the former owners in 1944 and several letters written to Mr. O’Neil in 1946. In May 1945, he was informed that the case would be tried. By letter dated February 18, 1946, Mr. O’Neil told Mr. Badzik that the case was on the March trial list and went on to say, “The amount which is on deposit in court now is not enough to pay all the delinquent taxes and it may be that the jury verdict will be in an amount which will completely cover all taxes.” Mr. Badzik never examined the court records in Civil Case No. 21234 to ascertain what amount had been deposited as estimated just compensation. After he knew from the letter of February 18,1946, from O’Neil, that the amount on deposit was insufficient to pay the comity’s claim, he took no action to assert the claim in Civil Case No. 21234. In his subsequent letters in 1946, he merely inquired as to whether the case had been tried and about the amount which had been awarded. The last report he received from Mr. O’Neil, on November 13, 1946, was: “As soon as the issues have been resolved you will be advised of the outcome.” Thereafter, the collection of delinquent taxes on parcel 3 was transferred from Mr. Bad-zik to Mr. John F. Smolka.

16. Mr. John F. Smolka is an Assistant Prosecuting Attorney of Cuyahoga County. Beginning in May 1943, he was assigned the responsibility of collecting the delinquent taxes on the DeFranco property, which is parcel 2 in Civil Case No. 21234, and later, in 1946, he was also assigned the responsibility of collecting the delinquent taxes on the Fertig property, which is parcel 3 in Civil Case No. 21234. Soon after the collection of taxes on parcel 2 was assigned to Mr. Smolka, he was informed of the pendency of Civil Case No. 21234. He knew that in a condemnation action, the United States pays only the market value of the land, even though there are liens of the land which exceed that value.

On December 6, 1944, Mr. Smolka wrote Mr. O’Neil in part as follows:

What I am interested in now is what arrangements, if any, have been made to pay the County Treasurer the amount due him for taxes. I should like to confer with you about this matter at your convenience.

Although Mr. Smolka never examined the court records in Civil Case No. 21234, he knew on November 3, 1945, that the United States had deposited $21,450 as estimated just compensation for parcel 2. At that time, his own records showed that the property had been foreclosed in 1941 for nonpayment of taxes in the sum of $28,446.52. On November 3,1945, he wrote Mr. O’Neil as follows:

Referring to our letter of December 6, 1944, and our subsequent telephone conversations relative to the payment of taxes due on the premises in caption, can you now advise us when these taxes will be paid? We understand that $21,450.00 have been deposited in Federal Court and from this amount the taxes were to be paid. Our most recent telephone conversation was October 22, 1945, at which time you informed the writer that you would check your files and advise this office.
Your co-operation in this matter will be greatly appreciated.

By letter, dated November 28, 1945, Mr. O’Neil replied as follows:

You are correct in your statement that the sum of $21,450.00 lias been deposited for this land which is our parcel 2. However, according to our figures general taxes exclusive of special assessments amount to $28,742.06. Accordingly, it would appear that the only thing that could be done at this time would be to make a partial payment of the taxes. If our tax figure is not correct and if you will accept a partial payment, please advise.
We have also been unable to pay taxes on Parcels 3, 5, and 9 because of insufficient funds. We have two statements for Parcel 3, owned by Frank and Freda Fertig showing amounts due in the sum of $15,819.87 and $1,244.53; Parcel 5 owned by Elmor C. Eggert in the sum of $413.19 (all funds in this matter have been distributed) ; Parcel 7 owned by Albanee Estates in the sum of $5,406.64; Parcel 9 owned by Leo Dessenberg in the sum of $15.76 (all funds in this matter have been distributed.

Mr. Smolka replied on December 28,1945, suggesting that the $21,450.00 be paid to the County Treasurer. Mr. O’Neil was referred to Mr. Kalph W. Edwards, Chief Assistant Prosecuting Attorney, as to how the payment should be applied.

Mr. O’Neil did not reply to this letter until after the County’s attorneys had written him several times. Finally, on February 18,1946, he replied as follows :

At the present time no adjustment of delinquent taxes on the above property has been made. This tract of land is on the trial list for cases to be held in March of this year, and at that time a jury verdict will decide what the amount of just compensation is.
Since the settlement of this case will take place at a fairly early date, we believe the best thing to do is to wait until we know the jury verdict before attempting to make any adjustment of taxes. The amount which is on deposit in court now is not enough to pay all the delinquent taxes and it may be that the jury verdict will be in an amount which will completely cover all taxes.

This letter was sent to Mr. Smolka and an identical one was sent to Mr. Badzik.

Both Mr. Smolka and Mr. Badzik later wrote requesting that they be kept advised of the progress of the case and on April 22,1946, Mr. O’Neil wrote as follows:

In reply to your letter of April 19, 1946, please be advised that the trial of the above case was continued at the request of counsel for the defendants.
As soon as any developments are had in this case which will enable us to pay the taxes, you will be advised.

17. On November 13 and 14, 1947, Mr. William O. Chatterton, an attorney from the Department of Justice in Washington, and Mr. Victor M. Todia, an attorney representing the former owners of parcels 1, 2, 3 and 4 in Civil Case No. 21234, negotiated for a settlement of the amount to be paid by the United States as just compensation for the four parcels. Mr. Chatterton informed Mr. Todia that he would recommend a settlement in the amount of $65,000, inclusive of interest, for the taking of the fee simple title to' the four parcels. On November 14, 1947, Mr. Todia informed Mr. Chatterton that his clients would accept this offer of settlement. The regulations of the Department of Justice provided that only the Attorney General could accept a settlement on behalf of the United States. By memorandum dated November 17, 1947, the proposed settlement was submitted to the Attorney General and it was accepted by him on November 18,1947.

The allocation of the amount to be awarded as just compensation for each of the four parcels from the total settlement of $65,000 was left to the former owners. These amounts were furnished to Mr. Chatterton by Mr. Todia as follows:

$11,000 for parcel 1, $30,000 for parcel 2, $20,000 for parcel 3 and $4,000 for parcel 4.

18. By stipulation dated December 6, 1947, the United States and the former owners of parcel 2 stipulated “that the sum of Thirty Thousand dollars and no cents ($30,000.00), inclusive of interest, shall be in full satisfaction of and just compensation for the taking by the United States of America” of parcel 2.

By stipulations dated December 19,1947, and January 17, 1948, the United States and the former owners of parcel 3 stipulated “that the sum of Twenty Thousand dollars and no cents ($20,000.00), inclusive of interest, shall be in full satisfaction of and just compensation for the taking by the United States of America” of parcel 3.

The terms of the settlement as to each parcel were embodied in an approved form of stipulation used by the United States in fee taking cases. The stipulation as to parcel 2 provided:

comb Now Ermino DeFranco, Antonio DeFranco and Mary Marino defendant (s) herein and hereby enter their appearances generally in this proceeding and hereby waive service of summons and any and all other process and notice in this proceeding and hereby waive all right to a hearing or trial on the issue of just compensation, and
it is stipulated and agreed by and between the said parties hereto that the sum of thirty thousand dollars and No cents ($30,000.00), inclusive of interest, shall be in full satisfaction of and just compensation for the taking by the United States of America of (Parcel) No. 2 as described in the Petition in Condemnation, Declaration of Taking, and Decree on Declaration of Taking, together with and including all buildings and improvements thereon and all appurtenances thereunto belonging, and
it is further stipulated and agreed by and between the parties hereto that the sum of thirty thousand dollars and No cents ($30,000.00), shall be subject to all liens,_ encumbrances and charges of whatsoever nature existing at the time of the taking of the said land and that any and all awards of just compensation ascertained and awarded in this proceeding ana established by judgment herein to any and all parties now or subsequently named as defendants herein, shall be payable and deductible from the said sum, * * *

This stipulation was dated December 6, 1947, signed by A. F. O’Neil for the United States and by the former owners, Ermino DeFranco, Antonio DeFranco and Mary Marino. It was filed in Civil Case No. 21234 on February 16, 1948. Mary Marino is deceased and Anthony O. DeFranco was appointed executor of her will on January 28, 1953, in Docket 486, Number 477749, Probate Court of Cuyahoga County.

Identical stipulations, except as to amounts, the names of the former owners and the parcel numbers, were executed and filed as to parcels 1, 3 and 4. There were two stipulations as to parcel 3. The first was signed by Florence F. Fertig and Julia C. DeFranco, and had their names in the first paragraph and the amount of $20,000 in the second and third paragraphs.

This stipulation was dated December 19,1947, and filed in Civil Case No. 21234 on February 16, 1948. The second stipulation as to parcel 3 was signed by Florence F. Fertig, Administratrix of the Estates of Frank M. Fertig, deceased, and M. Freda Fertig, deceased, had her name and the same designation in the first paragraph, and the, amount of $20,000 in the second and third paragraphs. This stipulation was signed January 17,1948, and filed in Civil Case No. 21234 on February 16, ,1948. The stipulation as to parcel 1 was dated December 30, 1947, and filed February 16,1948. The stipulation as to parcel 4 was dated November 22,1947, and filed December 1,1947.

19. During the negotiations for settlement between Mr. Ghatterton and Mr. Todia the fact that delinquent taxes were outstanding was discussed and Mr. Todia was informed that the taxes would have to be paid before he would get a check covering the settlement. The former owners of parcels 2 and 3 knew that delinquent taxes were outstanding when they signed the stipulations but they all testified that the amounts named were to be the net amount to them; otherwise they would never have agreed to these amounts which were less than outstanding tax liens against the property.

20. The plaintiff, Cuyahoga County, Ohio, has agreed that the values of parcels 2 and 3 are the amounts stated in the stipulations between the United States and the former owners.

21. On February 16, 1948, pursuant to the stipulation of December 6,1947, a final judgment was entered in Civil Case No. 21234 as to parcel 2 as follows:

This matter now coming on for hearing at this term of Court, and it appearing to the Court that the petitioner, the United States of America, has filed in this proceeding a Declaration of Taking (No. 1) covering lands in Cuyahoga County, Ohio, and deposited into the Registry of the Court the sum of $73,516.00 as estimated just compensation therefor, and that the title to said land was on the 23rd day of April, 1942, indefeasibly vested in the petitioner in fee simple absolute ; that included in the land so taken is (Parcel] 2, described in the Petition in Condemnation, Declaration of Taking (No. 1) and Decree on Declaration of Taking (No. 1), for which estimated compensation in the sum of $21,450.00 was included in said deposit, as stated in the said Declaration of Taking (No. 1); and
That all persons owning or otherwise interested in said parcel of land have stipulated and agreed that the sum of $30,000.00, without interest, is the just compensation to be paid for the taking of said parcel of land;
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the sum of Thirty Thousand Dollars and No Cents ($30,000.00) is the full, adequate and just compensation for (Parcel) 2, included in the lands taken by Declaration of Taking and sought to be condemned in this proceeding ; and that title to said (parcel) of land is vested in the United States of America and divested out of all other persons; and, the deposit in Court being $21,450.00:
it is further ordered that a deficiency judgment in the sum of 8,550 Dollars and 00 Cents ($8,550.00), be entered in favor of the defendants and against the petitioner, United States of America; and
That this proceeding be and the same is hereby retained for the further orders of this Court.

On the same day, pursuant to the stipulations of December 19, 1947 and January 17, 1948, a final judgment was entered in Civil Case No. 21234 as to parcel 3 as follows:

This matter now coming on for hearing at this term of Court, and it appearing to the Court that the petitioner, the United States of America, has filed in this proceeding a Declaration of Taking (No. 1) covering lands in Cuyahoga County, Ohio, and deposited into the Eegistry of the Court the sum of $73,516.00 as estimated just compensation therefor, and that the title to said land was on the 23rd day of April, 1942, indefeasibly vested in the petitioner in fee simple absolute; that included in the land so taken is (Parcel) 3, described in the Petition in Condemnation, Declaration of Taking (No. 1) and Decree on Declaration of Taking (No. 1), for which estimated compensation in the sum of $13,-450.00 was included in said deposit, as stated in the said Declaration of Taking (No. 1); and
That all persons owning or otherwise interested in said parcel of land have stipulated and agreed that the sum of $20,000.00, without interest, is the just compensation to be paid for the taking of said parcel of land;
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the sum of Twenty Thousand Dollars and No Cents ($20,000.00) is the full, adequate and just compensation for (Parcel) 3, included in the lands taken by Declaration of Taking and sought to be condemned in this proceeding; and that title to said (parcel) of land is vested in the United States of America and divested out of all other persons; and, the deposit in Court being $13,450.00;
it is further ordered that a deficiency judgment in the sum of 6,550 Dollars and 00 Cents ($6,550.00), be entered in favor of the defendants and against the petitioner, United States of America; and
That this proceeding be and the same is hereby retained for the further orders of this Court.

22. On April 8,1948, an order for distribution was entered in Civil Case No. 21234 as to parcel 2 as follows:

This cause came on to be heard upon the application of the United States of America, petitioner herein, and it being shown to the Court that the right to the full fee simple title in and to Parcel 2 is now vested of record in the United States of America;
That by virtue of a stipulation and final judgment thereon, on file in this court, the agreed compensation for the taking of said Parcel 2 is the sum of $30,000.00 which has theretofore been deposited into the registry of this court;
That by virtue of a previous order of distribution the sum of $3,480.96 has been distributed from said funds, leaving on deposit the sum of $26,519.04 which should now be distributed to the persons entitled thereto.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Clerk of this Court be and he is hereby authorized to issue a check in the sum of $26,519.04 to Ermino De-Franco, Antonio DeFranco and Mary Marino, c/o Attorneys Todia, Gordan and Sweeney, Terminal Tower Building, Cleveland, Ohio.

On the same day an order of distribution was entered in Civil Case No. 21234 as to parcel 3 as follows:

This cause came on to be heard upon the application of the United States of America, petitioner herein, and it being shown to the Court that the right to the full fee simple title in and to Parcel 3 is now vested of record in the United States of America;
That by virtue of a stipulation, and final judgment thereon, on file in this court, the agreed compensation for the taking of said Parcel 3 is the sum of $20,000.00 which has heretofore been deposited into the Kegistry of this Court;
That by virtue of a previous order of distribution the sum of $1,811.30 has been disbursed from said funds, leaving on deposit the sum of $18,188.70 which should now be distributed to the persons entitled thereto.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the Clerk of this Court be and he is hereby authorized to issue a check in the sum of $18,188.70 to Florence F. Fertig, individually and as Administratrix of the Estates of Frank M. Fertig, deceased and M. Freda Fertig, deceased and to Julia C. DeFraneo, c/o Attorneys Todia, Sweeney and Gordon, Terminal Tower Building, Cleveland, Ohio.

Payments were made by the clerk of the court in accordance with these orders. The former owners of parcel 2 were paid $26,519.04 ($30,000, less $3,480.96 previously paid to the City of Euclid) and the former owners of parcel 3 were paid $18,188.70 ($20,000, less $1,811.30 previously paid to the City of Euclid). After the payments from the funds on deposit in the registry of the court made under the orders for distribution of April 8,1948, all funds in the registry available for payments in connection with parcels 2 and 3 were exhausted.

23. Prior to the distribution of the money on deposit in the court, on April 4,1947, and again on April 11,1947, the County’s attorneys wrote Mr. O’Neil inquiring about the status of the case. The record does not show what reply, if any was made. After the distribution the County’s attorneys continued to write Mr. O’Neil until May 1, 1950', asking for payment. Finally, on May 9, 1950, Mr. O’Neil wrote Mr. Smolka in part as follows:

I have written the Public Housing Administration and the Cleveland Metropolitan Housing Authority to find out if they will not assist in clearing up this tax deficiency.
While the record shows service, there was no answer on behalf of the Comity setting up this tax lien, although there were letters setting out the amount which were not apparently compared in computing the whole amount due. This office did remit $37,000.00 in taxes, in six orders, copies of which are enclosed. Stipulations as to settlement were signed with the property owners and their counsel, Messrs. Todia, Sweeny & Gordon, and other law firms representing the parties.
This office must admit the error of presuming that these orders covered all the taxes due before disbursement was made. I do not believe recovery of the amount so disbursed to these owners can be easily made and further the whole amount disbursed still leaves a large deficiency.
* * * * *
I regret that this tax deficiency has been of such long standing but we will use every effort to see if we cannot soon meet the principal amount due.

24. The orders for distribution were drawn up and presented to the District Court for signature by Mr. O’Neil whose signature appears thereon under the word “Approved”. The attorneys for the County did not approve the orders nor did they have any knowledge that they had been entered or that the money had been distributed until about a month after the distribution. At that time, the Chief Deputy County Treasurer learned of the distribution and he informed Mr. Edwards, the Chief Assistant Prosecuting Attorney, but apparently Mr. Edwards did not pass this information on to his subordinates who were supposed to be handling the matter, because the record contains six letters from them to Mr. O’Neil asking that the money on deposit in the registry of the District Court be paid to the County. There was no money on deposit in the court when these letters were written.

25. It is not established that Mr. O’Neil had authority by virtue of his office or was otherwise authorized to make any commitment to, or enter into any arrangement with, any county official binding the United States with respect to payment of taxes to the county. The contemporary documentary evidence does not show that Mr. O’Neil made any commitment to, or entered into any arrangement with, any county official with respect to payment of delinquent taxes.

26. There is no evidence that any county official ever made any demand upon the former owners of parcels 2, 3 and 5 for payment from the amounts they received and there is no evidence that any county official ever made any effort to ascertain whether a demand would result in payment to the county.

After the former action had been instituted in this court against the United States by the County Treasurer on April 13, 1953 (No. 142-53), the United States moved the District Court to allow it to amend its petition in Civil Action No. 21234 in order to join Cuyahoga County and its officials as defendants in that action. At the same time the United States moved the court for orders to show cause against the former owners of parcels 2 and 3 to compel them to refund to the court the money they had been erroneously paid. The county opposed the motions of the United States on the grounds that it was futile to seek retribution from the former owners as they were either dead, outside the jurisdiction of the court or had already spent the money, and that the County should be left free to pursue its claim in this court against the United States. The District Court agreed with the county and denied the Government’s motions.

27. When No. 142-53 was filed, it included a claim by the comity for unpaid taxes on parcel 5. The United States Attorney made a written demand upon the former owners of parcel 5 that they pay to the County Treasurer the amount of the general taxes and special assessments due at the time the declaration of taking was filed. This demand resulted in payment to the County Treasurer of $413.19, the amount claimed to be due.

28. A housing project, known as Lake Shore Village, was constructed by the United States on the land acquired in Civil Case No. 21234. It included 800 units, the first of which was completed in August 1943, and all were completed by the end of June 1944.

29. Pursuant to Section 9 of the Lanham Act of October 14, 1940, 54 Stat. 1125, as amended, 42 U.S.C. 1546, the United States has made payments in lieu of taxes on account of the Lake Shore Village project, as follows:

30. The Lake Shore Village was conveyed by the United States to the City of Euclid on December 31, 1956, pursuant to Section 407 (c) of the Act of August 7,1956, 70 Stat. 1091.

31. (a) Upon the conveyance of the Lake Shore Village to the City of Euclid, the property again became subject to taxation. The Treasurer of Cuyahoga County submitted a tax bill to the city for the first half of the tax year 1957 in the amount of $45,385.53. The city tendered payment of the taxes in the amount of $45,385.53, but the Treasurer of Cuyahoga County refused to accept payment of the current taxes until all of the taxes, assessments, penalties, and interest which he had previously sought to recover in the case of Brennan v. United States, No. 142-53, in this Court, were first paid. The claim of delinquent taxes was in the sum of $88,745.11, and the County Treasurer asserted a valid and existing lien on the property. On ,Tanuary 15, 1958, an action entitled City of Euclid v. Frank M. Brennan, Treasurer of Cuyahoga County, Ohio, and John J. Carney, Auditor of Cuyahoga County, Ohio, No. 705, 214, was filed in the Court of Common Pleas of Cuyahoga County, Ohio, to enjoin the defendants from refusing to accept payment of current taxes during the pendency of the action and to have the defendants’ claims for delinquent taxes, assessments, penalties, and interest declared null and void and to enjoin them forever from asserting or showing them as liens or encumbrances on the land. The action by the City of Euclid is founded on the proposition that, upon the filing of the declaration of taking and the entry of the decree in 1942 in United States v. Certain Parcels of Land in the County of Cuyahoga, State of Ohio, and Peter Frank, et al., Civil No. 21234, in the United States District Court for the Northern District of Ohio, “fee simple title to the land was vested in the United States. Thereupon, all who prior thereto had any sort of title or lien upon it, were divested of their title or lien and there was substituted therefor only an obligation on the United States to pay just compensation for the land.”

(b) On January 20, 1958, the Court of Common Pleas entered an order under which:

* * * Defendant Frank M. Brennan, as Treasurer of Cuyahoga County, Ohio, be, and he is, hereby enjoined from the collection of all of the delinquent taxes, assessments, penalties and interest in the approximate amount of $88,745.11, appearing on the real estate duplicate for the tax year 1957 prepared by Defendant John J. Carney as Auditor of Cuyahoga County, Ohio, as a lien and delinquency on Permanent Parcel No. 644-30-3; and said Defendant Frank M. Brennan, as Treasurer of Cuyahoga County, Ohio, is further enjoined until final 'hearing of this action from refusing to accept payment of the general taxes and assessments appearing on the real estate duplicate for said Permanent Parcel No. 644r-30-3 for the first half 1957, and from refusing to distribute such general taxes and assessments as provided by law, and said Defendant Brennan is further enjoined until final hearing of this action from refusing to accept payments of all other current general taxes and assessments against Permanent Parcel No. 644-30-3 appearing upon the duplicate of the Defendant Carney as County Auditor during the pendency of this action, such current general taxes and assessments to be distributed as provided by law, provided that this temporary restraining order shall in no way affect the merits of the question of the validity of the delinquent taxes, penalties and interest herein considered.

(c) The defendants have filed no pleading in case No. 705,214, and there has been no further action in the case since January 20,1958. 
      
       139 Ct. Cl. 435, cert. denied 355 U.S. 890.
     
      
       Page’s Ohio General Code, section 5677: “The taxing authority of any political subdivision which has levied or shall hereafter levy any special assessment or reassessment payable in installments over a period of more than one year, may * * * accept payment in cash of all of the installments of such assessments or reassessment charged against any lot or parcel of land and not due * *
      Section 5677-1: “If such installments have been certified to the county auditor for collection, the fiscal officer of the subdivision shall, upon the payment of such installments, certify the fact of such payment to said county auditor, who shall thereupon cancel such installments upon his records.”
     