
    OMITTED TAXES —PURPOSE OF THE STATUTE AS TO CHANGE OF OWNERSHIP.
    [Circuit Court of Hamilton. County.]
    Lea M. Shields v. John H. Gibson, Treasurer.
    Decided, February 25, 1903.
    
      Taxation — Section 2803 — Provision of 'With Reference to Change of Ownership — Title by Devise — Omitted Taxes a Debt of the Decedent’s Estate.
    
    1. The purpose of the provision as to the change of ownership of real estate, found in Section 2803, is to protect a bona fide purchaser, who might rely on the tax duplicate as it appeared at the time of his purchase.
    2. A devisee of land has parted with nothing upon the faith of the record, but has become the owner by devise, subject to the payment of the debts of the testator. There is, therefore, no such change of ownership as will prevent a correction of errors in the tax duplicate by the county auditor, and omitted taxes based upon such corrections become a specific lien upon the real estate so devised.
    Jelke, J.; Swing, J., and Gieeen, J., concur.
   Tbe facts of this case are presented by findings made by the court below, and are as follows:

“1. In 1894, Margaret A. Shields owned two lots in different subdivisions in the twenty-eighth ward of Cincinnati, Hamilton county, Ohio, about one mile apart, described as follows:
“ fLot 21 — 25 feet McMillan’s, of four-acre tract.
Tt. lot 21, McMillan’s, of eighty-acre tract.’
“2. In 1894 or 1895, she bought an old house from Benjamin Evans, which was then valued on Evans property for taxation at $1,750, >as distinct from.the lot on which it stood, and moved it upon lot 21 of McMillan’s four-acre tract, erecting it there upon a new cellar and foundation and built a basement story under it, and converted it into an apartment house.
“3. In 1895 the annual assessor of the twenty-eighth ward of Cincinnati, having examined said house 'and appraised the same at $3,500, made an official report as to new structures in that ward to the county auditor, under the provisions of Section 2753, Revised Statutes, in the following words:
“ ‘In tbe twenty-eighth, ward the following is a correct report of the kind of structure, and the value of which, in my opinion, has been added to the lots or tract of land by the erection thereof, on the day preceding the second Monday of April, 1895.
“ ‘Where the building was reported in a previous year as unfinished, the amount here returned as total value and the amount then returned is deducted. Where an old building has been removed in whole or in part from the ground now occupied by a new structure, the part so removed, has been by me deducted in making the assessment, and the difference is the amount here reported.
“‘Daniel Koch, Assessor,
“ ‘May 6, 1895. “ ‘416 Shillito Street.
“ ‘Shields, Margaret A., pt. 21 McMillan, of eighty-acre tract, thre’e-story frame, total value of new structure, $3,500, amount to be added to 1895 duplicate for new structure, $3,500. Finished.’
“Which entry was intended to apply to said house, and said addition was intended to be made to the lot on which said house was situated.
“4. The board of supervisors, sitting as an annual board of equalization, considered the report of ‘all tbe annual assessors and made no change in the valuation as so reported by the said assessor of the twenty-eighth ward, but allowed their action, being as shown on page 206 o>f their minute, a transcript of which is attached hereto, marked ‘A.’
“5. The county auditor entered the $3,500 as an addition to the tax valuation as reported by the 'assessor against the property standing in the name of Margaret A. Shieidis on duplicate as pt. 21 McMillan’s eighty-acre tract.
“6. Margaret A. Shields died August 9, 1900, leaving a will which was probated August 24, 1900, under which Lea M. Shields was appointed executrix and qualified as such, which will directed the payment of all just- debts, and devised one-half of the residue of her estate, real and personal, to her daughter, Lea, plaintiff herein, and one-fourth to her daughter, Mary, and one-eighth to her son, William, and one-eighth to her' son, Lawrence Shields. On March 21, 1901, petition was filed in case No. 6482, Probate Court, Hamilton County, Ohio, by Lfeá Shields, as executrix of the estate of Margaret A. Shields, deceased, .against said Lea M. Shields, Mary C. Shields, Lawrence Shields and William A. Shields and his wife, and Alexander M. Shields and his wife, to sell tbe real estate ¿escribed in the petition to pay the debts of said Margaret A. Shields, deceased. And proceedings were had thereunder, whereby said premises were sold for $3,600 to Moses Goldsmith at private sale of June 22, 1901, and said sale was approved and 'confirmed by the court June 24, 1901, and s'aid executrix ordered to execute a deed, therefor, which deed was duly executed June 24, 1901, and recorded June 25, 1901, in Deed Book 862, page 213. On distribution of proceeds of said sale no order was made by said, court for any payment of taxes out of same; county treasurer was not a party to said cause.
“On April 17, 1901, Mary C. Shields and Lawrence' Shields, brother and sister of said Lea M. Shields, both unmarried, executed a quit-claim deed to said Lea M. Shields of their interest in the real estate described in the petition, as did William A. Shields and wife, which deeds were recorded June 25, 1901, in Deed Book 860, page 502, and Deed Book 861, page 311, respectively.
“And on June 24, 1901, said Lea M. Shields individually executed a quit-claim deed to Moses Ooldsmith, in consideration of $1 and other considerations, of said real estate described in the petition, in which was contained the f ollowing condition:
“But this conveyance is hereby made subject to a vendor’s lien in favor of said grantor herein for the sum of $506.63 (five hundred and six and 63-100 dollars), which said amount has been retained out of the purchase money by said grantee for the payment of certain taxes added by the auditor of Hamilton county, Ohio, being $461.16 back taxes and $45.47 taxes added payable in December, 1900, the legality of which said additions is- by said -grantor disputed, -and said grantor agrees with said grantee that she will at once institute proceedings in court to test the legality -of said additions and to remove them from the property herein idfeseribed either in- whole or in part and to prosecute proceedings with due diligence, and said grantee agrees to pay said amount in his hands to said grantor whenever said, tax lien is removed from said title by payment -or otherwise.’
“7. J. D. Barker -having -bought from Margaret A. Shields the real estate- 'described as part of lot 21 of eighty-acre tract, on January 14, 1898, redeemed said property from the forfeited list by paying the delinquent taxes, including the taxes charged on the $3,500, and -on November 5, 1900, made claim for a refunder of taxes on the excess valuation of $3,500, ¡as said lot so- redeemed was a vacant lot 'and said charge had been erroneously made upon said part lot 21 of McMillan’s eighty-acre tract, when it should have been charged against lot 21 McMillan’s four-acre tract. The auditor having investigated, said claim, a refunder was allowed on November 17, 1900, for $461.16, and on November 23, 1900, a remit given for taxes -on said $3,500 excess-for the then current year, amounting to $90.92, making in all $552.08. Shortly after-wards, the -auditor not knowing that Margaret A. Shields was dead, directed -a letter to her notifying her to appear to show cause why -an addition should not be made to the tax valuation of lot 21, McMillan’s four-acre tract, of the $3*500 valuation for the ■omitted building upon said lot which had been erroneously charged to the lot sold to said Parker.' And on or about December 13, 1900, not hearing from Margaret A. Shields, 'and the letter mailed to her address not having been'returned, although it had his return ■card upon the envelope, the auditor made said addition 'and charged up the taxes for said omitted building -against said lot 21 of McMillan’s four-acre tract, which had been theretofore -charged on p-t. lot 21 of McMillan’s eighty-acre tract, in the following entry upon the subsequent additions on the tax duplicate for the year 1900, then in the hands of the auditor and treasurer:
“ ‘Shields, Margaret A., lot 21 — 25 feet McMillan’s, of four-acre -tract, house, $3,500; taxes due December 20, 1900, $45,465; taxes ■due June 20, 1901, $45.465; $461.16. Add to regular taxes 1895, 1896, 1897, 1898 and 1899: No- pen.
“ ‘Was erroneously charged to J. D. Parker.’ ”

Section 2803, Revised Statutes, provides:

“In all cases where -any county auditor shall discover, or have his attention -called to the fact, that any assessor in any previous year shall have omitted to return, or shall in any future year omit to return any lands, town lots, or any improvements, structures o-r fixtures thereon, subject to taxation, situated within his county, ■or if any such property has escaped taxation by reason of any error ■of said -auditor, it shall be the duty of said auditor to ascertain the value thereof for taxation, -as near as may be, and to enter ■said lands, town 1-ots or improvements, upon the duplicate of the county, then in the hands of the county treasurer of such county, and to add to the taxes of the current year the simple taxes of •each and every preceding year in which such property shall have ■escaped taxation, as far back -as the next preceding decennial appraisement and equalization of real estate in his county, unless in the meantime such property shall have changed ownership, in which case only the taxes chargeable since the last change of ownership shall he added, or the owner of such property may, if he desires, pay the amount of such taxes into the county treasury, ■on the order of said auditor.”

Under this provision of the statutes the auditor of the county was authorized to enter upon the duplicate of the county the improvement erroneously charged to another lot, unless title by devise is such a change ef ownership as is contemplated in such section of the statutes.

Counsel for plaintiff relies upon the case of Lohaus v. Hagerty, 7 C. C., p. 408, and on the strength of this case the court below decided against the county. In that case a tax sale was held to be within the provisions of Section 2803, Revised Statutes, so as to prevent the ““Dow tax,” which had erroneously been charged to another lot, from subsequently being charged against the lot sold.

There are two points of essential difference between that case and the case at bar: First, money had been expended by the tax purchaser upon the faith of the duplicate; and second, the ““Dow tax” is a special -tax in no way based upon the valuation of the property and there would be nothing on the records in regard thereto to put a purchaser on notice.

In the case of Scott v. Raine, 25 Bull., 154, in the Superior Court of Cincinnati, Judge Hunt, on page 188, said:

““The term “owner* in Sections 1040 and 2803 can not be enlarged more than to include such a Iona fide purchaser of the property as estops the state from the assertion of a claim against the property for taxes, which at the time of the purchase were not on the duplicate and of which the purchaser could not be advised. There can be no good reason why the heirs of a decedent or the devisees of a testator, or the d'onee by deed, of gift, or the lessee for a term of years, should be exempted from the taxes legally due upon the land which but for this change of ownership the state would have been able to collect. They have not parted with anything of value on the faith of the condition of the duplicate, which is the very reason of the law itself. No such construction can be permitted. It would seem that the decision in Davis v. Cincinnati, 36 Ohio St., 24, is conclusive as to what the term “owner* means, in so far as taxes and assessments are 'concerned, and assuming that Davis was the owner of a lease for a term of years with all the obligations to pay taxes and assessments between him and the lessee, nevertheless the term “owner* in the statute referring to assessments — and certainly by fair implication referring to taxes — means owner in fee. Change of ownership therefore means a change in ownership in fee, by a bona fide purchase, in order to estop the state under Sections 1040 and 2803 from the collection of taxes, which but for those sections would otherwise be collected.**

We think this is sound and applicable to this case.

The case of Heave Building Co. v. Brooks; 6 Circ. Dec., 280 is a case of change of ownership for value, and that this was of importance in the minds of the court is shown on page 153:

W. M. Ampt, for plaintiff.

Wilson> Gosgrave & Jones, contra.

“The six grantors in said deed owned and held shares in the capital stock of said corporation, some in proportion and some in excess of their respective interests in the lot at the time of the conveyance. Said trustees, as such, did not at any time hold ox own any shares of said stock. Persons other than those named, who never had any interest in any of said land, held and owned shares of said stock from the organization of the corporation np to this time.”

The Supreme Court said in ease of Markle v. Newton, 64 Ohio St., 493:

“The duplicate would have the effect of notice by public record, and a person thereafter acquiring the property could not claim the protection of a bona fide purchaser. What the rights of a purchaser may be, against the state, must depend upon the facts of his case.”

In our opinion the purpose of this provision is to. protect a bona, fide purchaser wlm might rely on the duplicate as it appeared at the time of his purchase.

The devisee has parted with nothing upon the faith of the record, but has become the owner of the lot by devise, subject to’ the payment of the debts of. the testator, and the omitted taxes are in the nature of a debt entitled to a specific lien.

Petition dismissed.  