
    Treasurer v. Martin.
    
      Stafoite of limitations—When party not allowed to plead it if defense—Unconscientious defenses not favored in equity—Un constitutional law— When party not permitted to question it.
    
    1. An unconscientious defense, founded upon an unfair advantage obtained by a party without fault on the part of his adversary will not be favored by a court of equity.
    2. Where, before the accruing of a cause of action, a part)' procures the allowance of an injunction restraining the commencement of an action upon such cause, and its continuance in force unti) the period allowed by the statute of limitations for commencing such action has expired, such party will not, after such injunction has been dissolved, because wrongfully obtained, be permitted, in a court of equity, to plead the statute of limitations as a bar to such action.
    3. A party who has procured the enactment of a special law intended for his benefit cannot be heard to question the constitutionality of the act.
    (Decided April 25, 1893.)
    Error to the Circuit Court of Brown county.
    On the 26th day of April, 1882, the plaintiff in error filed a petition in the Court of Common Pleas of Brown county, to enforce the collection of an assessment of $328.12, with interest from December 20, 1881, made by the county commissioners for the construction of the Ripley and Arnheim free turnpike road, upon 220 acres of land of the defendant. By supplemental petition like relief was sought as to another assessment of $221.61, which had then become due.
    The road improvement was built under the act of April 5, 1866, known as the Two-Mile Free Turnpike Road Raw.
    To the petition the defendant pleaded the statute of limitations. To this plea the plaintiff replied that he was stayed by an injunction procured by defendant, from collecting, or attempting to collect, any of these assessments. The injunction was allowed February 7, 1871, and continued in force until dissolved by the Supreme Court at its December term, 1876.
    
      And, as separate reply, plaintiff further alleged that “on or about the--day of---1866, the commissioners of said county, under and by virtue of an act of the general assembly of the state of Ohio, entitled an act ‘to authorize the county commissioners to construct roads, on a petition of a majority of resident land owners along and adjacent to the line of said roads,’ passed and took effect April 5, 1866, ordered the construction of the Ripley and Arnheim free turnpike road improvement, mentioned in the pleadings herein, and under and by virtue of said act, and the proceedings thereunder, the lands of defendant described in the petition herein were duly returned and assessed in the sum of $550.05, as being benefited to that extent by said improvement, and said sum was, on the 28th day of October, ’70, ordered by said commissioners to be assessed against said lands of defendants to be paid in ten equal semi-annual installments; that the cost of said improvement was about $7,250 per mile; and that defendant and all others within the boundary of said road improvement were assessed at that rate per mile to pay for the same, and defendant stood charged with said amount upon the special duplicate in the hands of the treasurer; that afterwards, to wit: on the 6th day of May, 1878, at the instance and request of defendant, and others whose lands were assessed to pay for said improvement, the general assembly of the state of Ohio passed an act entitled an ‘ act to authorize the commissioners of Brown county, Ohio, to levy a tax and issue county bonds to pay the bonds issued by the commissioners of said county for the construction of the Arnheim Free Turnpike and interest and bonds of certain other roads of said county,’ and in pursuance to said act the said commissioners ordered a tax to be levied upon the lands of defendant and all others within the boundary of said road sufficient to pay off four thousand dollars per mile of the cost of said road and no more, and the said assessments theretofore levied upon the lands of defendant and others within the boundaries of said road, were on the--day of—.—1878, re-apportioned and reduced, and said lands were then taxed or assessed upon the basis of $4,000 per mile for said improvement and no more. The Arnheim Free Turnpike mentioned in the title to said last named act, is the same road or improvement mentioned in the pleadings herein, and the taxes so levied under and by virtue of said act are the taxes claimed in the petition herein.”
    A demurrer to these replies was sustained by the circuit court, and judgment entered dismissing the petition and awarding defendant his costs.
    
      Moore & Markley, for plaintiff in error.
    The petition in this case does not seek to recover a personal judgment against defendant, but was brought to enforce an assessment lein against the lands therein described, and the court will bear in mind, in the further discussion of this case, that there was no law authorizing this kind of a suit to be brought until 1876. 73 O. L., 218; Bruechweh v. Drake, 31 Ohio St., 652
    We think that the facts pleaded in the replies completely avoid the statute of limitations, if the court should find that this action is within the purview of the statute of limitations.
    The court will - bear in mind that the statute of 1876 was the first statute which gave the remedy sought to be enforced in this action. Ohio Raws, vol. 73, page 218: Bruechweh v. Drake, 31 Ohio St., 652. This act was passed and took effect April 11, 1876. Now we must bear in mind that at the time of the enactment of this statute the treasurer could do nothing toward the collection of this assessment, because he was enjoined from so doing.
    We claim that the statute of limitations w'ould not run against the collection of these assessments, until the passage of the act of April 11, 1876, in any event. Bruechweh v. Drake, supra.
    
    That the pendency of the case of Parker v. Burgett, ánd the fact that the treasurer was at the time of the passage of this statute enjoined by the parties in this case from collecting or attempting to collect these assessments, we think, would prevent the running of the statute of limitations until the injunction was dissolved.
    That by reason of the legislation set up in the second reply to the fifth defense, a right of action had not accrued more than six years prior to the bringing of this suit.
    We think that the case of Bruechweh v. Drake, is decisive of the question set out in the first reason, and will discuss the second and third reasons separately, and as to the second reason for reversing the judgment of the circuit court.
    We think that the state of facts set up by the reply to the answer setting up the statute of limitations, suspends the running of the statute.
    That it will not be premitted to this defendant to enjoin the treasurer, and prevent him from collecting or attempting to collect these assessments, and then after the court decides that the injunction ought not to have been granted, that he should set up the bar of the statute.
    •In a case where the facts are as alleged in the reply, it seems repugnant to all of our ideas to permit the defendant to set up the statute of limitations. We respectfully refer the court to the following authorities. Angelí on limitations, secs. 62 and 63, and notes; Id. page 197, note*- 3 and authorities cited; Braun v. Sauerwein, 10 Wallace, 218, which seems to us to be exactly in point and to meet the questions in the case at bar. Williams v. Pouns, Supreme Court of Texas, November, 1877, Reporter, volume 5, page 82: High on Injunction, sec. 87; Fortier v. Zimpel, 6 La. Ann. 54; Doughty v. Doughty, 10 N. J. Eq., 347; 3 Stock. N. J., 347; Little v. Price, 1 Md. Ch., 182; Moore v. Crockett, 10 Humph. (Tenn.) 365; Hutsonpiller v. Stover, 12 Gratt. (Va.) 579; Wilkinson v. Flowers, 37 Miss., 579; American and English Ency. of Law, page 719, under the Limitations of Actions; Armstrong v. Levan, 109 Pa. St., 177; Lengar v. Hazlewood, 11 Lea (Tenn.) 539; Dugin'd v. Scholfield, 32 Gratt. (Va.) 803.
    
      C. A. White, and G. Bambach, for defendant in error.
    Brief of C. A. White.
    
    
      Does the restraining order and injunction pleaded by the plaintiff in his reply prevent the statute from running? We contend that it does not.
    The allowance of an injunction addresses itself always to the equitable jurisdiction of the court, and is always subject to such modifications as the court allowing it may see proper in the exercise of a sound judicial discretion to impose. If it restrains an action at law, and the party is in danger of losing his rights by the interposition of the statute of limitations, there is no court that would hesitate for a moment to so modify the injunction as to permit the commencement and service of process in an action at law or in equity, as the case might be. The presumption is that courts will do their duty. More than forty years of the study of their procedure, and of the practice of my profession in them, has led me to the belief that that presumption is well founded; and being so, there is no occasion for the engrafting of a new exception upon the statute of limitations. Tucker v. Shade, 25 Ohio St., 355; Baker v. Millard, 16 Wendell, 572-3; 6th Bacon’s Abridgment, 395-6; McIver v. Ragan, 2nd Wheaton, 25; Hudson v. Cary, 11 S. and R. 10-14; Sacia v. Degraf, 1 Cowen, 356.
   Spear, J.

The first question is as to the sufficiency of the plea of the statute of limitations.

The original assessments were made by virtue of the act referred to as the two mile free turnpike road law, October, 1870, and ordered placed upon the special duplicate, payable in ten equal semi-annual installments, the first, $55.00 in amount, coming due December, 1870.. There then existed a provision of statute, (section 38 of the general tax law of 1859), which, in case of delinquent taxes on personalty, required the clerk of the court of common pleas, on application of the treasurer, to serve a notice on the delinquent to show cause why he should (,not pay such taxes, and if he failed to show sufficient cause, the court at the next term could enter a rule against him for the taxes and costs, having the force and effect of a judgment at law, and to be enforced by attachment against the person, or by execution, or such process as the court might direct. If this statute could be held to apply to assessments, which is at least doubtful, it authorized only a special proceeding, and not a civil action, within the meaning of the statute of limitations. It could not, therefore, affect the present case. And there was not, until the act of February 18, 1875, (72 Ohio Taws 37), to which the act of April 11, 1876, is an amendment, any authority for a suit similar to the present one. Plaintiff’s action was, therefore, founded upon the last named act, in which it is provided “ That whenever any taxes or assessments, heretofore or hereafter levied or assessed, shall stand charged against any lands or lots, or parcels thereof, upon the tax duplicate or special duplicate of any county 'of this state, for state, county, city, or any other purposes, and the same shall not be paid within the time prescribed by law for the payment of such taxes and assessments, the treasurer of such county, in addition to any other remedy provided by law, for the collection of such taxes and assessments, is hereby specially authorized and empowered to enforce the lien of such taxes and assessments upon said property, by commencing in any of the courts of this state having jurisdiction of the subject matter, a civil action in the name of such treasurer, to subject a sufficient amount of such realty to the payment of such taxes and assessments; and it shall be sufficient, having made proper parties to the suit, for such treasurer to allege in his petition that the said taxes and assessments stand charged upon the said duplicate of said county against said lands, the amount thereof appearing to be due and unpaid thereon, and that the same is due and unpaid.”

It was alleged in the petition that the auditor had placed in the hands of the plaintiff for collection, the special duplicate for the year 1881, for the construction of the Ripley and Arnheim free turnpike road; that upon it there stood charged against the person, and against 220 acres of the lands of the defendant therein described, an assessment for $328.12, with interest from December 20, 1881; that the same was due and unpaid, although the time prescribed by law for its payment had elapsed; that the same was a lien upon the lands, and praying an'order that, in default of payment of the amount found due, the lands be ordered sold.

Defendant’s plea was that the action accrued in favor of plaintiff, if at all, more than six years next before the Commencement of the same, and the filing of the petition and supplemental petition. And, in support of this, it is insisted that the case was covered by section 4981, Revised Statutes, which provides that “ An action upon a liability created by statute, other than a forfeiture or penalty, shall be brought within six years after the cause of action accrued.”

Plaintiff’s cause of action being given by the statute of February 18, 1875, no question is made but that, if the statute applies, and that if defendant can avail himself of it, the effect will be to defeat plaintiff’s action, inasmuch as the original petition was filed more than six years after the passage of the act. And, if section 4981 applies to an assessment, and can be pleaded against the county, the statute is a bar unless, because of' facts stated in the reply, the plaintiff’s case is saved from its operation.

Whether or not an assessment is “a liability created by statute, other than a forfeiture or penalty,” and whether the bar. of the statute can be maintained against the county, we do not here determine. Passing that, the question is whether or not a party may be permitted to set up the bar of the statute of limitations as a defense to an action the commencement of which he has wrongfully procured to be restrained until sufficient time has elapsed to render such a defense available at law?

That a party should be accorded the full legal effect of such plea is maintained upon the ground that to refuse to recognize and enforce such right is to engraft an exception upon the statute of limitations which the legislature has not placed there. And this is sustained by several decisions, and the opinions of some text writers.

Now, it may be freely conceded that the statute of limitations, where applicable, is a meritorious defense, and one which may be pleaded in equity as well as at law. Nor will a court of equity, where the demand is of' a legal nature, refuse to recognize such, defense, nor to enforce it where fairly ' obtained. So, if from the laches of the other party, the defense has arisen, its sufficiency appeals as well to a court of equity as to a court of law. But a party has not the right, under every and all circumstances, to take advantage of the statute. A variety of cases will be found in which courts of equity have refused to allow the application of the statutory bar. Hanger v. Abbott, 6 Wall. 532, is an example. Plaintiffs action could not be brought within the statutory time because, by reason of the rebellion, he could not sue in the state courts, and the court held that the plaintiff, having been without fault of his own, disabled by a superior power, from the capacity to sue, could not be affected by the statute. U. S. v. Wiley, 11 Wall. 508, is another instance. It is remarked by Mr. Justice Strong in that case that statntes of limitations “are enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time, if he has the power to sue. Such reasonable time is therefore defined and allowed. But the basis of the presumption is gone whenever the ability to resort to the courts has been taken away. In such a case the creditor has not the time within which to bring his suit that the statute contemplated he should have.” Another exception to the general rule is that there must be in existence both some one who can sue, and some one who can be sued, as shown by the familiar rule that where an action accrues to the estate of a deceased person, the statute does not begin to run until the qualification of a personal representative. Angell on Lim. Ch. 7; Montgomery v. Hernandez, 12 Wheat. 129; Marsteller v. Marsteller, (Penna.) 10 Rep. 440; Sarrells v. Trantham, (Ark.) 24 Rep. 297; Murray v. East India Co., 5 B. & Ald. 204; 13 Am. & Eng. Ency. of Law, 737, and cases cited.

And, while in proper cases, as suggested above, courts of equity will apply the statute, or act in analogy to it, yet it is a familiar principle of equity that a party may not be permitted to insist upon an unconscientious advantage acquired over his adversary. It will not be doubted, we suppose that where one wrongfully obtains an injunction and continues it in force, to the detriment of his opponent, he has taken an unfair advantage. It is said by Mr. Justice Story (2 Equity, 849), “if a party should apply to a court of equity and carry on an unfounded litigation, protracted under circumstances and for a length of time which should deprive his adversary of his right to proceed at law on account of the statute of' limitations having in the intermediate time run against it, courts of equity would themselves supply and administer within their own jurisdiction a substitute for that original legal right of which the party had been thus deprived, and by their decree give him the fullest benefit of it.” And to like effect are many other authorities. Little v. Price, 1 Md. Ch. 182; Williams v. Pouns, 5 Rep. 82; Moore v. Crockett, 10 Humph. 365; Sugg v. Thrasher, 30 Miss. 135; Wilkinson v. Flowers, 37 Miss. 579; Savings Inst. v. Buchanan, 60 Miss. 496; 13 Am. & Eng. Ency. of Law, 719.

It seems reasonable to conclude that it would be against conscience for a party to maintain a plea of the statute against an adversary, who, by his procurement, has been enjoined from prosecuting his suit. A court of equity may, and we think, when applied to, should, interpose the same instrument to prevent such injustice as the party himself has used to obtain an unfair advantage against his opponent. No man should be permitted to take advantage of his own wrong. And what a court of equity might do upon a direct application by bill for the purpose, it may do where the facts are shown by reply to a plea of the statute by a defendant.

In this case there appears no laches on the part of plaintiff. He refrained from prosecuting his remedy because such was the order of the court, procured by the defendant, and continued in force during the time he was prosecuting a fruitless litigation in the courts of the county and in this court. The delay complained of was the result of the wrongful act of the defendant himself, for which the plaintiff was in no way responsible, and it now comes with an ill grace for the unsuccessful party in that litigation to insist that the observance by plaintiff of that order of injunction, and his obedience to it, shall work a defeat of his right of action because of such delay.

It is insisted that the plaintiff might, at any time, have applied to the court for a modification of the order so as to permit the commencement of suit and service of process, and not to have done that is of itself laches. We do not think so. The court’s solemn fiat had gone forth forbidding the commencement of any such action, and to ask that court to set aside that order so that plaintiff might go through the fruitless motions of placing a petition upon the files, and obtaining service of summons, and thereafter go through the ceremony of responding “continued” at each call of the docket during the pendency of the injunction suit, would seem like an application for leave to do a succession of vain things.

The case of Tucker v. Shade, 25 Ohio St. 355, is cited as supporting the contention of defendant. In that case the question was whether or not, as between a creditor and the owner of land by purchase from the judgment debtor, the lien of a levy of execution would continue to operate after the period of five years, where the creditor had been enjoined at suit of one who was surety in the judgment from issuing a second execution, and the purchaser bought, took conveyance, and paid the purchase money, without actual notice of the alleged lien. The holding, in substance, was. that inasmuch as the purchaser was not a party to the suit in which the injunction was allowed, and inasmuch as-there was no reference to the property in controversy, nor any right to it set up in that suit, the controversy being only as to the. discharge of the alleged surety from liability on the judgment, the suit operated only on the parties personally, and the lien was not prolonged beyond the five years, as against the purchaser. It is apparent that we have a different case.

At the time the plaintiff’s cause of action arose he could not commence suit upon it because of defendant’s injunction. That disability continued until the judgment dissolving the injunction by this court at its December term, 1876, in fact rendered May 8, 1877. Within six years after-that judgment he commenced the present action, and our conclusion is that in equity and good conscience the defendant should not be permitted to insist upon the bar of the statute of limitations as applied to the time during which the plaintiff was enjoined from commencing his action.

The demurrer also challenges the validity of the act of May 6, 1878.

This act is open to verbal criticism, but we do not see that there is any serious fault to be found with it. The law is intended to operate upon a then existing condition of things in Brown county. A burdensome charge had been laid on lauds presumably benefited by the improvement. Many of the assessments had not been paid. By virtue of the act the commissioners were authorized to reduce the total burden from a sum based upon a cost of $7,250 per mile, to a sum based upon a rate of $4,000 per mile; to refund to such as had paid assessments based upon the first named rate an amount sufficient to equalize the burden, and to levy upon the taxable property of the county for the residue. They then might, as a substitute for the original assessments remaining unpaid, levy specially upon the same lands according to the reduced rate, and extend payment of such special tax or assessments, so that they would be paid in twelve equal semi-annual installments. This scheme does not seem to be unfair; at least not to those liable for such assessments.

As we have already found, the statute of limitations had not, at the enactment of this Statute, run against any of the assessments made upon the lands of defendant, and, the bar not being complete, the defendant could have -no vested right in the former statute of limitations, whatever that may have been. If any one could justly complain of this statute it would seem to be the general tax-payer, and not one 4who was benefitted by its provisions.

But, aside from this, the defendant is in no position to question the statute. The allegations of the reply show that he, with others, procured the action of the legislature in that behalf. It is a local measure, for their special benefit, and, after having invoked, the action of the law-making power for their relief, they cannot, upon well established principles, be heard to assert a want of power to give what they procured to be given. The State v. Mitchell, 31 Ohio St. 592; Tone v. Columbus, 39 Ohio St. 281.

The judgment of the circuit court will be reversed, the demurrer ordered overruled, and the cause remanded for further proceedings, in accordance with this opinion.

Reversed.  