
    The Laurelhill Land Co. v. Collister, County Treas., et al.
    (Decided May 2, 1932.)
    
      Mr. Alfred Kelley and Messrs. Davies & Eshner, for plaintiff.
    
      Mr. Edward Blythin, for the defendant village of South Euclid.
   Montgomery, J.

This action comes into this court by appeal from the common pleas court of Cuyahoga county. With it are submitted seventeen other cases, numbered consecutively. Counsel, in open court, agreed that upon the decision of this court of the principles involved they would prepare entries in the several cases in conformity with the facts in the several cases, based upon the conclusions announced in this particular action.

The defendants are the county treasurer and county auditor of Cuyahoga county and the village of South Euclid, Ohio. The prayer of the petition is that an injunction issue restraining the village of South Euclid from certifying to the auditor of Cuyahoga county for collection any part of certain assessments; that the defendant auditor be enjoined from entering upon the duplicate any part of such assessments; and that the treasurer be enjoined from taking any steps toward the collection of any portion of such assessments.

A joint answer was filed by the treasurer and the auditor, and a separate answer by the village of South Euclid. The case was tried in the court of common pleas upon a stipulation which is in the following language :

“It is stipulated by and between the plaintiff and the defendant, the Village of South Euclid, Ohio, that all causes of action and all issues herein may be deemed dismissed by the plaintiff with the exception of its last cause of action and its claims for relief resulting from and upon the issue raised by the admitted failure of the Village of South Euclid, Ohio, to comply with the provisions of Section 8572-56 of the General Code of Ohio, as set forth in its last cause of action. It is stipulated that the plaintiff is the owner of the Torrensized lands described in the petition and became the owner thereof for value subsequent to the enactment of the legislation for improvements by the defendant village and subsequent to the completion of the improvements.

“It is further stipulated that the petitions mentioned in the answer herein were filed by the former owners of the lands described in the petitions and that the petitions contain an express agreement on the part of the signers to pay for said assessments, it being agreed, however, that neither the plaintiff nor any of its stockholders were a party to said petitions; that no petitions were filed for the sewer district assessments, and further that no certificate, as required by Section 8572-56, was filed for such sewer district assessments with the recorder, and that the amounts of the assessments are as shown by the village and county records. It is further stipulated that the plaintiff has not paid any portion of the assessments levied for the improvements mentioned in the pleadings filed and that the premises are mortgaged as stated in the answer.

“It is agreed that the foregoing stipulation contains all the facts in the above cause not previously admitted by the pleadings.”

The lands involved in this proceeding are all registered lands under what is known as the “Torrens System of Land Registration,” and the last cause of action mentioned in the stipulation, which is the seventh cause of action in the petition, averred that no copies of the resolution of necessity, or the assessing ordinance for any of the improvements, were filed with the county recorder of Cuyahoga county and that no memorial of said improvement or assessment appears upon the certificate of title which the plaintiff holds; and that said assessments were all void by virtue of the provisions of Section 8572-56 of the General Code of Ohio.

The common pleas court granted an injunction, as prayed for in the petition, and from this order the village of South Euclid appealed to this court.

In this court the village of South Euclid filed an amended and supplemental answer, in which it pleaded estoppel, in this, to wit: That the conveyance and Torrens certificate of title, by which the plaintiff secured title, contain specific provisions that the same were subject to certain conditions, reservations and stipulations, which were made by the former owners of the real estate and predecessors in title of the plaintiff; that said assessments had been made on the basis of the petitions in writing signed by the owners of said lands, being the parties named in said reservations as the original owners; and that the plaintiff had executed a mortgage warranting the title except as to these reservations and restrictions.

The case was tried in this court upon the petition and this amended answer, and was submitted upon the stipulation hereinbefore set forth, together with certain documentary evidence, to wit, a copy of the reservations, a copy of the petition, the deed to the plaintiff, and the plaintiff’s transfer certificate of title.

Plaintiff claims that it is entitled to an injunction because of the failure to comply with Section 8572-56 of the General Code of Ohio, which reads as follows: “When in a city, village, township or county, an ordinance, resolution or order is passed or made by a council, board or other authority, to lay out, establish, alter, widen, grade, regrade, relocate or construct or repair a highway, road, street, sidewalk, drain or sewer, or to make any other public improvement, or to do any work, the whole or a portion of the expense of which may be assessed or levied upon real estate, if any registered land or any land included in an application for registration then pending is affected by the act or proceeding, and liable to such assessment, or if an ordinance or resolution is passed making or levying any such assessments on registered real estate or certifying to the auditor or other officer or board any such assessments to be made or levied on any registered land, the clerk of the board or council passing such ordinance, resolution or order or issuing such certificate, shall file in the recorder’s office a notice of the passage or issuance thereof giving a list of the lands assessed, or to be assessed and a memorial thereof shall thereupon be noted by the recorder on the register of each certificate of title for such land. Unless there is filed with the recorder such notice and list of lands, registered lands shall not be liable for such assessments. In case of the repeal or nullification otherwise of such ordinance, resolution or order, such clerk or officer or board shall within five days thereafter notify the recorder thereof who shall thereupon cancel such memorials.”

Were the doctrine of estoppel not invoked, as set forth in this amended answer, this court would, without hesitation, grant the relief prayed for in the petition, and would hold that this section means what it says. It is to be avoided, if at all, by the conduct of the plaintiff.

It will be noted that the amended answer pleads estoppel, as against the plaintiff, by virtue of a deed and contract, and to determine whether this is true reference must be made to the documentary evidence offered in this court.

The grant in the deed to the plaintiff recites that it is “subject to the same restrictions, covenants and conditions as contained in the deed from the Brotherhood of Locomotive Engineers Cooperative National Bank to Stanlee T. Bates and Mills G. Clark, same being Land Title Registration Document No. 35886, as shown on Certificate of Title No. 14630.”

There is a covenant in the deed, reciting that the same is free from all incumbrances whatsoever “except taxes and assessments, general and special, for the year 1928 and thereafter, all of which the grantee assumes and agrees to pay.”

The owner’s transfer certificate of title makes the same recitation as that made in the deed, which is hereinbefore set forth.

The reservation, to which reference was made, was in the original owners of the subdivision, and it retained to them the sole right to institute, to grant consent, or install improvements, and the sole right to petition the authorities for the installation of any and all improvements in their opinion necessary for the proper development of the subdivision. It then contains the following provision: “The grantee hereby consents to and affirms any agreement that may be entered into between the said original owners, their heirs and assigns, and other parties, providing for the installation of any of said improvements, and the grantee shall be bound, together with the lands herein described, for the payment of the cost of said improvements, hereby waiving all notices with reference to said petition and for consent to all things or acts which may be necessary in the matter, hereby granting and ratifying all agreements or acts on the part of the said original owners or their heirs and assigns in regard thereto, until the 1st day of January, 1940.”

The petition filed by the former owner of the land was that the entire cost of the improvement be assessed according to benefits upon the lots and lands fronting on the street, and contained a waiver of statutory limitations, and further expressly waived “any and all irregularities or defects in the proceedings taken for or on account of said improvement, or the levying or collection of assessments charged for said improvement, or the letting of contracts therefor,” and further waived any damages or claims for damages of whatsoever kind, character, or description growing out of or resulting from said improvement or the making thereof.

The petition further recited: “Your petitioners further waive notice of the passage of any and all resolutions, ordinances, orders or notices had or required for the making of said improvement, including a notice of the passage of the resolution declaring the necessity for said improvement, authorized by Section 3818 of the General Code of Ohio, and notice of the amount and time of payment of any and all assessments levied or charged, or to he levied or charged on account of said improvement, together with the notice authorized by Section 3895 of the General Code of Ohio.”

Counsel for plaintiff also involve Section 8572-31, General Code, which is to the effect that a person taking a transfer of registered lands is not held to inquire into the consideration of previous owners, and shall not be affected with notice of liens, etc.

That section is not available if the doctrine of estoppel is effectively invoked, any more than are the provisions of Section 8572-56. It is the opinion of this court that the plaintiff cannot rely upon the provisions of this act when it had impliedly waived reliance thereon. It accepted the deed which contained these restrictions, and which exempted assessments from the warranty. It gave a mortgage on the property, and from its warranty it also made a similar exception.

With propriety counsel for the village cites the ease of Doten v. Bartlett, 107 Me., 351, 78 A., 456, 32 L. R. A. (N. S.), 1075, which holds that a grantee is es-topped to deny the validity of an assessment recited in his deed, and especially is he estopped when he himself makes a mortgage and repeats the same recital as an exception to the title.

Here the evidence of plaintiff’s title showed clearly the reservation in the grantor of the right to secure these improvements and to bind the land, and the plaintiff was specifically bound to assume the assessments. Here is a specific agreement, the effect of which the plaintiff will not be permitted to escape. Here is a clear case of estoppel by deed and by contract, and estoppel by the express act of the plaintiff itself. The previous owner of the land reserved the right to institute these improvements, and to bind the land for them. The previous owner filed the petition, and the village made the improvement.

Under these circumstances, the plaintiff cannot, in our judgment, escape liability for the assessments. This holding would not be applicable to the cases, or to the assessments in any of the cases, in which the subject-matter may be improvements not petitioned for by the former owners in accordance with these reservations.

To the extent that these assessments do represent improvements so petitioned for in accordance with the reservations made by the former owners of the land, there may be a decree for the defendant, dismissing the petition.

As to other assessments, there may be an injunction allowed as prayed for in the petition.

Decree accordingly.

Sherick, P. J., and Lemert, J., concur.

Judges of the Fifth Appellate District sitting by designation in the Eighth Appellate District.  