
    The President, Trustees, and Faculty of the Cincinnati College v. George S. La Rue, Auditor of Hamilton County.
    ?1. In a proceeding by mandamus to compel an officer to do an act which it is claimed the law enjoins on him as a duty, the existence of all the facts necessary to put him in default must be shown.
    ;2. Before the auditor of a county can be required to transfer real properly from the name in which it stands charged on the duplicate, to the name of a party to whom it has been assigned or conveyed, evidence of the title of the party, to whom the transfer is to be made, must be presented to the auditor; and where the transfer is to be of only apart of such property, satisfactory proof must also be made to the auditor of the value of such part as compared with the valuation of the whole as charged on the duplicate.
    :3. The presentation by the .party seeking the transfer, of a statement of the facts concerning the title, with the request to the auditor to have the property valued and transferred, is not a compliance with the statute. The evidence on which the auditor is to act is prescribed by the statute, and he can be required to act on no other.
    
    4. "Whore specified apartments in a building on a city lot are held by perpetual lease, by which it is provided that, in the event of the destruction of the building by fire, it is to be rebuilt, and that the lessee shall have the same rights in the new building as in the old, U seems that the property held by the lessee may be listed on the duplicate for taxation in his name, if such appears, by- the terms of the lease, to have been the intention of the parties.
    Error to the District Court of Hamilton county.
    The present petition in error is prosecuted to reverse the judgment of the District Court dismissing the petition of .the plaintiff in error for a mandamus to compel the defendant, as auditor of Hamilton county, to enter upon the tax duplicate of the county, for taxation, in the name of the Young Men’s Mercantile Library Association, certain described premises, which stand on the duplicate and are taxed in the name of the plaintiffs in error.
    The plaintiffs and the library association referred tor are each corporations, duly organized under the laws of this state.
    The plaintiffs being seized in fee simple of a certain lot of ground fronting on the east side of Walnut street, in Cincinnati, on the 1st day of January, 1849, by articles of indenture entered into with theYoung Men’s Mercantile Association, in consideration often thousand dollars paid, aud of certain covenants in said indenture contained, demised and leased to said association, being the party of the second part to said indenture, together with certain other privileges, “all those certain apartments in the Cincinnati College buildings of the party of the first part, occupying the entire front of the second story of said building, one hundred and forty feet in length, and fifty feet deep, more or less, and together with the privileges and appurtenances to the same belonging, to have and to hold the said premises-to the said The Young Men’s Mercantile Library Association of Cincinnati, and their successors and assigns, for the-full term of ten thousand years, to be fully completed and ended free of all i’ent, commencing on the 1st day of January, a. d. 1849, and renewable forever, on the same terms,, and the same privileges and provisions herein contained.”
    • The indenture, among others, contains the following stipulations: “And the said party of the first part agrees-to keep the said college building in good repair, so as not to obstruct or interfere with the full and complete enjoyment and use of the apartments above mentioned, by the said party of the second part; and the said party of the second part agrees to keep the said apartments in good order and repair, at their own expense; and the said party of the second part agrees to keep ten thousand dollars insured on said building on their own account at all times; and the party of the first part also agrees to keep such an additional'amount constantly insured on said building as shall, in conjunction with the amount insured by the party of the second part, secure all parties against any loss by fire; and the said party of the first part agrees, in case the aforesaid building shall be destroyed by fire, or other casualty covered by insurance, that they will rebuild the same and put it in as good a condition as it was before, and the-rights, interest, and privileges heroin granted to said party of the second part, shall extend to each and every new building rebuilt upon the lot where the said college building now stands, as fully and completely as to the present college building; and it is agreed, by the said party of the-second part, that they will contribute toward such rebuilding their proportion of the insurance money received, or which may be received, by the said parties in ease of fire, etc.; . . . and the said party of the first part agrees to hold the said party of the second part secure and harmless against ail special assessments or taxes, such as paving and lighting the streets, etc., which may be levied upon the said party of the second part, for city purposes, and against no other taxes whatsoever, and for delinquency in the payment of such other taxes, the said party of the first part may re-enter,” etc.
    The plaintiffs, in their petition filed in the District Court for mandamus, aver: “That according to the intent and meaning of said instrument, by force of its terms and stipulations, as also by force of law, it became and was the duty of the said association, immediately after the execution and delivery of said conveyance, to cause their interest and estate in said property, so derived under said conveyance, to wit, their interest and estate in said apartments above described, to be entered upon the tax duplicate, against them for taxation, for state and county purposes, and for all purposes except special city purposes, such as-paving and lighting the streets, etc., and therefore to pay the aforesaid taxes on such interest or estate; and further, that they failing so to place it on the duplicate, it became and was the duty of the auditor of Hamilton county to so place said interest or estate on the tax duplicate for taxation, against said library association.
    “But they say that although many years have elapsed since the execution of said conveyance, yet said association have never applied to have such interest or estate so placed on the duplicate; neither has such auditor so done, nor has said association ever paid any tax thereon.”
    The only averment -to show a breach of duty on the part of the auditor, in not making the transfer on the duplicate of the premises demised or conveyed as aforesaid, from the name of the plaintiffs to that of the "Young Men’s Mercantile Library Association, is the following: “ That on the 4th day of May, a. d. 1871, they presented to Geo. S. La Rue, auditor of Hamilton county, and defendant herein, a statement comprising said facts, and requested him to have said interest or estate of said association, in said premises, valued and placed on the tax duplicate in the name of said association; and that the said defendant then and there refused so to do, or to take any steps to that end, and still refuses.”
    An alternative writ was allowed to issue, embodying the substance of the petition, and to which was attached, as part (hereof, a copy of the indenture. The defendant was duly served; but he neither made return nor answer to the .alternative writ.
    The case appears to have been submitted to the court upon the petition and the copy of the indenture. The following is so much of the final entry as shows the disposition .-of the case:
    “ In this cause, no answer having been filed, and the cause beii g submitted upon the petition of plaintiffs, and the instrument of conveyance annexed to the alternative writ of mandamus heretofore granted herein, which instrument, by agreement of parties, was treated and considered as a part of the petition, and no testimony being offered by either party, and the arguments of counsel being heard; the court thereupon lind that the plaintiffs are not entitled to require that the portion of the building described in the petition as demised or conveyed'to the Young Men’s Mercantile Library Association by said instrument, and occupied and used by said association, shall be separately assessed for taxation against said association ; and accordingly order said petition dismissed at plaintiffs’ costs.”
    The refusing of the order asked for, and the dismissing •of the petition, are assigned for error.
    
      Me Guffey, Morrill $ Strunk, for plaintiffs:
    1. The interest of the association is, practically, a distinct fee simple; and should be placed onthegrand duplicate separate from the interest of the college. S. & C. 1142; Proprietors, etc. v. Lowell, 1 Met. 538; Rhodes v. McCormick, 4 Iowa, 368; 1 Hilliard on Real Property, 52; Otis v. Smith, 9 Pick. 297; Aldrich v. Parsons, 6 N. H. 555; Doe v. Burt, 1 Term, 701; Bro. Abr. Demand, 211; Co. Litt. 486; 67 Ohio L. 105.
    2. Although the instructions of section 29, tax law (as amended), S. & S. 752, can not be literally followed, the general provision, that taxes on real property shall be assessed in the name of the owner, must prevail.
    3. The college is not restricted to its right of re-entry in case of a breach of the covenant to pay taxes. Stephenson et al. v. Haines et al., 16 Ohio St. 478. It may be urged that no breach could occur prior to a separate assessment .against the association.
    
      Collins $ Herron, for defendants:
    The writ of mandamus lies in cases where the relator has .a clear legal right to the performance of some official act hy a public officer, and no other adequate specific remedy. Cincinnati, W. & Z. R. R. Co. v. Commissioners of Clinton Co., 1 Ohio St. 77.
    The college, here, has no such right to the performance of the act which it seeks to enforce. The language of the statutes (67 Ohio L. 105, sec. 13; S. & S. 752; S. & C. 102, sec. 26) does not clearly cover it, and the custom in this state is against it. It is a well-settled, custom to tax land* and buildings against the party owning the ground, except where a lessee has covenanted to pay the taxes. If this exception exists here, the plaintiff has an adequate specific remedy on the covenants.
    
      King, Thompson Longworth, in reply :
    1. The plaintiff’has no other remedy. Without an assessment against the defendants, there can be no “ delinquency”' or cause of action.
    2. The deed carries an interest in the land. Foster v. Dennison, 9 Ohio, 121, 124. It is not of the present building only, but binds the plaintiff to rebuild, and extends to-every new building erected upon the lot. Northern Bank of Kentucky v. Roosa, 13 Ohio, 334; Masury v. Southworth, 9 Ohio St. 340; Morgan v. Mason, 20 Ohio, 401; Brainard v. Town of Colchester, 31 Conn. 477; Trustees of Elmira v. Dunn, 22 Barb. 402. It creates a divided ownership of land,, and there ought to be a divided taxation. Logan v. Washington County, 29 Penn. 373.
    3. Even if no interest passed in the soil, it is the auditor’s duty to transfer “ any land or town lot, or part thereof,, whenever rendered necessary by any conveyance.” 67 Ohio L. 105, sec. 15. The tax laws define and treat the-building as part of the lot or land. 2 S. & C. 1439, see. 2; Ib. 1450, secs. 27, 28 ; Ib. 1418, sec. 22; Ib. 1463, sec. 36. A man may have an inheritance in an upper chamber, though the lower building and soil be in another. Co. Lit. 48, b;. Doe v. Burt, 1 Term, 701. Such separate assessment of portions of buildings will be indispensable under the provisions of the homestead exemption acts. 66 Ohio L. 59,. secs. 2, 6. It is perfectly practicable, and courts have ordered it when the purposes of justice require it. The State v. City of Elizabeth, 4 Batch. 103; Detroit Y. M. Soc. v. The Mayor, 3 Mich. 172.
    4. The lease creates an implied covenant that defendants-shall pay all taxes, other than special assessments for lighting- and paving the streets. Hollis v. Carr, 2 Mod. 87; Saltoun 
      v. Houston, 1 Bing. 43-3; Easterby v. Sampson, 6 Bing. 644; Kelley v. Stanberry, 13 Ohio, 408, 425. Even if it does not raise a personal liability, it shifts the burden of taxation upon the property conveyed. Stephenson v. Haines, 16 Ohio St. 408.
   White, J.

The judgment in this case must be affirmed. Before the plaintiffs can be entitled to a peremptory writ of mandamus against the defendant, they are required to show that he is in default in respect to the performance of an act which the law specially enjoins as a duty resulting from his office. The present is not a case where property is off' the duplicate, and is thus escaping taxation. In such case, it is made the duty of the auditor to inform himself and see that the property is brought on the duplicate. No property is escaping taxation in the case before us. The object sought is to have property, which is taxed in the name of the plaintiff's, transferred to the name of another party to whom it has been assigned or conveyed. The duties of the county auditor, in such case, are found in section 13 of the act of April 18, 1870, prescribing the duties of county auditors. 67 Ohio L. 105.

The section, so far as relates to the duty of the auditor, is as follows:

“The county auditor shall, on application and presentation of title, with such affidavits as may be required by law, or the proper order of a court, transfer any laud or town lot, or part thereof, charged with taxes ou the duplicate, from the name in which it may stand into the name of the owner, whenever rendered necessary by any conveyance, partition, devise, descent, or otherwise; and if, by reason of the conveyance or otherwise, a part only of any tract or lot, as charged on the duplicate, is to be transferred, the party or parties desiring the transfer shall make satisfactory proof of the value of such part as compared with the valuation of the whole, as charged on the duplicate, before the transfer shall be made; and the auditor shall indorse on the deeds or other evidences of title presented to him, that the proper transfer of the real estate therein described has been made in his office,” . . . “ and sign his name thereto.”

The plaintiffs do not appear to have taken the steps required to be taken by this section, before it becomes the duty of the auditor to make a transfer of property on the •duplicate. No evidence of the title of the Young Men’s Mercantile Libi’ary Association to the property which it is ■sought to have transferred, was presented to the auditor; nor was there proof made of the value of such property as compared with the valuation of the whole property as it ■stood charged on the duplicate. Both steps were necessary 'before the defendant could be required to make the transfer. In a proceeding of this nature it is not sufficient to •show that the officer omitted or refused to do the act which it is sought to compel him to perform. The facts must also be shown which made if his duty to do the act.

True, the plaintiffs presented to the auditor a statement comprUing the facts, and requested him. to have the interest •and estate of the association, in said premises, valued and placed on the tax-duplicate in the name of the association. But this was not a compliance with the statute. The evidence on which the auditor is to act, in making the transfer, is prescribed by the statute, and he can be required to act on no other.

~We are by no means satisfied that such rights and interests as the Mercantile Library Association has in the building and in the ground for its support, where such appears to have been the intention of the parties in the instrument creatiug them, can not, under the tax laws of this ■state, be entered on the duplicate for taxation, in the name •of the association. This is the question that has been argued by the counsel of both the parties. But our conclusion upon it can not affect the judgment to be pronounced in the case before us. Nor, we may add, tlo we see how-the substantial rights of the parties, under the ■contract, can be made to depend on whether the auditor does or does not list such property in the name of the associafion. The taxes are lovieci in respect to or on account of the property, in whosoever’s name it may be entered on the duplicate. It was, of course, competent for the parties), if they saw proper to do so, to make the liability of the-, association for taxes contingent upon the then state of the law, and the changes that might thereafter occur as to the mode of listing and taxing the property. The question is-whether such is the intention as evinced by the contract; whether the parties, in contracting in respect to rights of property of so much value, and which they contemplated, might last forever, intended the operation of the stipulation, as to the taxes, to be thus uncertain and contingent.

Judgment affirmed,.  