
    JUDICIAL SALES —ASSESSMENTS—LIENS.
    Hamilton Circuit Court,
    1897.]
    Cox, Smith and Swing, JJ.
    The City of Cincinnati v. H. H. Lingo et al.
    Failure oe City to Set up an Assessment Lien.
    Where the city fails to set up an assessment lien against property going to a judicial sale, such lien cannot afterwards be asserted against the property
    Heard on Error.
   Smith, J.

The question in this case briefly stated is this. — An action was brought in the court of common pleas of this county for the foreclosure of a mortgage on certain real estate in the city and to marshal the liens thereon. Before that time viz.: in 1892, the city by an assessing ordinance had levied an assessment upon such property, viz.: a street improvement, payable in 10 annual installments, and in 1889 had levied another assessment thereon for the improvement of alley, and which was also payable in 10 annual installments, part of which had been paid at the time of the filing of the petition for the foreclosure, viz.: February 4, 1893. After the filing of this petition the city was made a party defendant, and thereupon came into court and by its answer and cross-petition set up its claim for the amount due upon the street assessment, viz.: $297.95 but said city entirely failed by its answer or cross-petition to set up any claim on account of the alley assessment. The defendant in error purchased said real estate at the sale thereof made by the sheriff under the decree of the court in said case, which sale was confirmed by the court, and a distribution of the proceeds of sale ordered. The court found that there was due to the city for street assessments $297.95 and this sum was paid in full to the city. Afterwards the defendants in error filed a petition in the court of common pleas averring that the city by its officers were taking steps to collect the alley assessment, and setting up the facts mentioned, and averring that for said reasons the collection thereof would be illegal, and that the city was estopped from the collection thereof against the property in the hands of the plaintiffs, and asking an injunction to prevent said collection. The city filed a general demurrer to this petition which was overruled by the court, and the defendant not desiring further to plead, a decree was entered as prayed for. The plaintiff in error in this proceeding claims that in such action the court erred, and this is the question for decision.

Under the provisions of section 2285, the assessment for the improvement of the alley became a lien on this property from the date of the assessing ordinance, and on the facts set up in the petition in this case, if the city in its answer and cross-petition filed in the original suit had set up its claim for the alley assessment also, the court might properly have found it to be a lien on the property, (unless controverted by the owners on some sufficient ground,) and ordered its payment from the purchase money. It seems clear too on general principles, that if in an action of that kind, to foreclose a mortgage and marshal and adjudicate as to other liens held by other persons on the same premises, the holders of such liens are made parties to such proceeding and called upon to set up their said liens, and they fail or neglect to do so, or by way of answer or cross-petition set up only a part of tbe claims held by them at tbe time tbey became parties, and tbe court adjudicates as to tbe rights of sucb lienholders, and tbe property is sold to pay them, and tbe purchase money distributed according to tbe order of tbe court, in sucb case,. if such decree stands in full force, tbe purchaser of tbe property takes it free of tbe claims of all parties to the proceeding, not only of those asserted and adjudicated, and tbe parties are estopped to set up, as against tbe purchaser of other claims held at tbe time, but not set up by them. This is certainly a fair and equitable doctrine, and almost essential to tbe projection of purchasers at judicial sales.

I have said that this is tbe general rule. Does it apply to a case of this kind, where tbe lienholder is a municipal corporation, and tbe lien itself is for an assessment upon tbe property ?

Tbe claim of tbe corporation counsel is, that it does not. That in sucb case tbe city is not a necessary or proper party, and- if made a party is not bound to assert its claim, and if it does not do so, or if it does file an answer and cross-petition, and by mistake or otherwise fails to set up its whole claim, and the liens are adjudicated as in this case and tbe property sold, that tbe lien omitted to be set up remains upon tbe property, and can be asserted at anytime. That in this respect sucb a lien for an assessment is like that of the state for taxes, and that in cases to sell property or marshal liens the state or its representative is never made a party.

The question is a novel one and as to which tbe members of tbe court are not agreed. So far as our knowledge goes, tbe point has never been raised in practice. It has always, we think, been tbe practice in such cases, to make the municipal corporation a party, and for it to set up and assert its lien, and a majority of the court is of tbe opinion that sucb is the proper practice, and that it ought to be followed, or at tbe least, that if the corporation is made a party, and fails to set up its lien or claim, or does it incorrectly, and it is adjudicated, that tbe same rules should apply to a municipal corporation, as to an individual or a private corporation. That tbe same rule does not apply to an assessment made by a municipal corporation as does tbe lien of tbe state for taxes. Tbe latter is the sovereign power. It is not liable to a suit, unless in tbe cases specifically provided for by statute. It is not affected by suits or adjudications to which it is not a party. Its lien for taxes is tbe first and best lien, and must be paid. And for the protection of purchasers at judicial sales, section 2854 Revised Statutes, provides that “on all judicial sales, tbe court, ” (without pleadings of any kind raising tbe question,) “shall order the taxes and penalties, and the interest thereon against said lands to be discharged out of the proceeds of such sale.” This renders it wholly unnecessary for the question to be raised by any pleadings. But we have never understood that this provision applied also to assessments made by a municipal corporation. The state as a sovereign power in many respects stands on a very different footing from private persons or corporation, or even municipal corporations. For instance as to the bar of the statute of limitations. The maxim “nullum tempus occuredregiapplies to the state, but not to municipal corporations as held by our supreme court, and if a person is permitted by a statute to sue the state, it would be as much bound by the adjudication of the court, as an individual, and we suppose the same principles of estoppel would apply in such case.

A majority of the court then is of the opinion that the petition of the plaintiff stated a good cause of action against the city, the defendant. That such defendant by reason of the proceedings in, and the judgment of the court in the case mentioned, was estopped from the enforcement of this alley assessment as against the land of the plaintiffs below who purchased it at the judicial sale made under the order of the court in that case, and therefore that the demurrer to the petition was properly overruled, and the judgment will be affirmed.

Fred Fdertenstein & W. H. Whittaker, Attorney for the City

J. H. Charles Smith, Attorney for Tingo.

Swing, J.

(dissenting opinion.)

I do not agree with the majority of the court as to the question here determined. It seems to me that the city was not a necessary or proper party and that the question of its lien was not before the court for any determination. The lien of the city had been fixed by the assessing ordinance and unless directly set aside by a court in a direct proceeding could only be relieved by payment. The mistake of any officer in saying what the amount of the assessment was, cannot bind the city and there does not arise in this case an estoppel.  