
    Makley v. Whitmore, et al.
    
      Assessments in installments — For municipal improvements — Installments should not be placed on annual duplicate until due and payable — Installments properly entered collectible as other taxes — Installments not due, lien on property, when — In sale of land vendor does not pay undue installments, when — Sections 2854 and 1042, Rev. Stat.
    
    1. Installments of assessments for municipal improvements which are certified to the county auditor and are due and payable within the year next after the last day of September in any year, should be placed upon the duplicate of the county for such year and collected as other taxes; the installments not so due and payable should not be placed upon the annual duplicate until they become so due and payable.
    2. Installments which are properly entered upon the annual county duplicate should be collected the same as other taxes, and in case of a judicial sale of real estate, or a sale by administrators, executors, guardians or trustees, made after the last day of September in any year, such installments as stand unsatisfied upon such duplicate should be paid out of the proceeds of such sale, as provided as to other taxes in Section 2854, Revised Statutes.
    3. Installments not due and payable within the year next after the ' last day of September, remain a lien upon the real estate in the hands of the purchaser at such judicial sale, or sales by administrators, executors, guardians or trustees, and such purchaser takes such real estate burdened with the lien of such unmatured assessments, and he has no right to have the same paid out of the proceeds of such sale. Neither has such municipality such right.
    4. Whether the date from which to reckon is the first day of November instead of the first day of October, in counties having a city of the second or third grades of the first class, as provided in Section 1042, Revised Statutes, is not involved in this case, and is not decided.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Montgomery county.
    The controversy in this casé arises over the disposition of the proceeds of the sale of real estate upon foreclosure of two mortgages. Judgments and orders of sale were entered by tbe court in favor of one mortgagee as plaintiff, and in favor of another as cross-petitioner. Tbe real estate was sold by tbe sheriff under an order issued under tbe judgments of foreclosure. Tbe sale was approved and confirmed by tbe court, and a deed ordered to be made by tbe sheriff to tbe purchaser, Sarah Belle Whitmore, and all of tbe proceeds of tbe sale except tbe sum of $400 were distributed by tbe order of tbe court. Some twenty-five days after such distribution, but while tbe $400 still remained in tbe bands of tbe sheriff, tbe purchaser and tbe city of Dayton were made parties defendant, and answered jointly, setting up tbe fact that tbe city bad made certain street and sewer improvements and assessed tbe costs thereof against tbe real estate; that tbe owner, Louisa T. Makley, bad failed to pay tbe assessments, and that tbe same bad been certified to tbe county auditor to be placed upon tbe tax duplicate, and collected by him in ten equal annual installments with interest, as other taxes, and that the same bad been “entered in his books kept for said purpose.” Tbe answer further averred that tbe bonds were issued by tbe city on account of said assessments; that tbe assessments became a lien on said premises from tbe date of tbe passage of tbe assessing ordinances in the-years 1892 and 1893, and that a number of tbe installments bad been paid, but that tbe sum of $295.05 remained unpaid, and which sum the answer averred was tbe first and best lien upon tbe proceeds of sale remaining undistributed.
    Tbe third subdivision of tbe answer set up an assessment for the improvement of an alley, in tbe sum of $129.93, to be paid in one installment and duly certified to tbe auditor, tbe same as above set forth as to the street and sewer assessments. Tbe answer avers that the ássessing ordinance was passed in tbe year 1896, but fails to state tbe month or day of its passage, and fails to state the date at which work was commenced upon the improvement, or when the twenty days expired, within which payment might be made.
    Louise T. Makley demurred to this answer upon the ground that it did not. state facts sufficient to entitle the city or the purchaser to any relief. The court overruled the demurrer and entered judgment, ordering that $390.22 be paid to the purchaser out of said sum of $400 yet .remaining in the hands of the sheriff, the city having consented that the purchaser might assume and pay said assessments, to all which plaintiff in error excepted.
    The order of sale was issued on the 14th day of April, 1897, the sale was confirmed on the 24th day of the following May, and distribution made.on the third day of June thereafter.
    The circuit court affirmed the judgment of the common pleas and thereupon Louisa T. Makley filed her petition in error in this court, seeking to reverse the judgments below.
    
      Wright & Ozias, for plaintiff in error.
    
      Wm. G. Frizell, for Sarah Belle Whitmore.
    
      Fchain P. Matthews, City Solicitor, for defendants in error.
    Brief of Wright & Ozias.
    
    
      Caveat emptor applies to all judicial sales. Riddle v. Bryan, 5 Ohio, 48; Vattier v. Lytle, 6 Ohio, 477; McLouth v. Rathbone, 19 Ohio, 21; Corwin v. Benham, 2 Ohio St., 36; Creps v. Baird, 3 Ohio St., 277; McKenzie v. Perrill, 15 Ohio St., 162; Dresbach v. Stein, 41 Ohio St., 70.
    Does the lien of the city of Dayton for assessments for paving, etc., come within this rule?
    We claim it does. Ketcham v. Fitch, 13 Ohio St., 201. This decision is the more satisfactory, as it gives the reasons upon which the rule is founded. It has never been overruled, modified or limited. If this is the rule in such cases, then the next question is, whether assessments are “taxes,” and if so, are they such taxes as can be ordered paid out of the purchase money? Section 2854, R. S.
    But we may concede that assessments, when due, become current taxes, and if so, then they must be on the duplicate on October 1, of any year, before they are payable out of the proceeds of the sale made thereafter. Hoglen v. Cohan, 30 Ohio St., 436.
    This excludes all assessments not due and not on the duplicate October 1, from payment out of proceeds of any sale made thereafter. Such undue assessments are therefore simply liens, or incumbrances, not “taxes.”
    If, then, undue assessments are governed by the rule of caveat ernptor, in judicial sales, such assessments cannot be paid out of the purchase money, unless they are current taxes and were on the duplicate for collection at the time of the distribution.
    Brief of Wm. C. Frisell.
    
    This defendant in error claims, in the first place, that assessments against real estate,* whether payable in one or more installments, are such taxes that must be discharged out of the proceeds, at a judicial sale of the real estate. Section 2854, Revised Statutes of Ohio. Assessments in said section are not specifically mentioned. Assessments, however, are a species of taxes, and are included in the generic term taxes, unless for some special reason they are excluded. That assessments are a species of taxes has been decided so frequently by the supreme court of Ohio, that it is the settled law of the state. Two excerpts from two decisions will show the trend of all the many decisions upon this point. Hill v. Higdon, 5 Ohio St., 243; Reeves v. Treasurer, 8 Ohio St., 303; Cleveland v. Wick, 18 Ohio St., 358; Sessions v. Crunkilton, 20 Ohio St., 358; Chamberlain v. Cleveland, 34 Ohio St., 551; Raymond v. Cleveland, 42 Ohio St., 527.
    Sections 2264a, 2270, 2270a, 22705, 2270c, 2270.2, 2270c, 2270f, 2271, of the Revised Statutes, refer to assessments as “the tax or assessment specially levied or assessed.” Section 2281 speaks of an assessment as “tax assessed.” Sections 2292 and 2292a, referring to a light assessment, say, “levy and assess a tax.” Section 2295 calls, an assessment “an assessment or tax.” Sections 2265, 2311, 2358, 2365-5, 2406-47, and 2293-49, relating to the collection of assessments, say that they shall be “collected as other taxes.” The last two sections are in the special Dayton Street Paving and Sewer laws, under which the assessments in controversy in this case were levied.
    As a species of taxes they are included in the general term taxes, as used in section 2854, of the Revised Statute, relating to the discharge of taxes at a judicial sale from-the proceeds of the sale unless for some special, apparent reason, they are excluded. Does any such reason appear? The wording of the statutes suggests none.
    In the second place, this defendant in error claims that if assessments are not taxes, but are simply liens, that the lien-holder may become a party to the proceedings any time before the final order of distribution, and that the liens may then be ordered paid to the lien-holder out of the proceeds of the sale.
    That the lien-holder may become a party to the suit before the sale and his lien paid out of the proceeds of the sale is not questioned. Porter v. Barclay, 18 Ohio St., 546.
   Burkett, J.

The record shows that upon distribution of the proceeds of the sale, the court ordered first the payment “to the treasurer of this county the taxes due on said property, amounting to $445.73.” This must be taken and understood as including all assessments then due and standing upon the duplicate. This seems to be conceded, or at least is not controverted, by counsel for the defendant in error, but it is claimed that the assessments not due but remaining unpaid should be paid out of the proceeds of the sale, either the whole amount including the interest, or with a proper rebate of interest. The courts below ordered the assessments and interest with a rebate for the unexpired time to be paid, and the question is whether this could be legally done over the objection of the judgment debtor. We think it could not. Section 19 of the act of April 24, 1890, 87 O. L., 288, amended, 91 O. L., 482, being section 2293-50, Bates’ Statutes, under which the assessments were made, provides that such assessments shall be a lien upon the property from the commencement of the work, and shall not be divested by any judicial sale. The general statute, section 2285, provides that special assessments shall be a lien from the date the assessment was made. ■

While it does not appear when the work was commenced, and not definitely when the assessing ordinances were passed, enough appears in the record, as against a demurrer, to show that the assessments were made and certified to the county auditor, and were liens upon the real estate in question at the time of the sale, confirmation and distribution, and that the unpaid installments of the assessment were not due, and were not standing upon the annual tax duplicaté at the time of the sale and confirmation..

Section 18 of the act of April 24, 1890, 87 O. L., 288, being section 2293-49, under which these improvements were made, provides that the assessments shall be placed on the duplicate of the county, and shall be payable at the office of the county treasurer in ten equal annual installments, the first of which shall be payable at the first semi-annual payment of taxes next succeeding the time said assessment is placed upon the duplicate, and the others annually thereafter until all are paid, and said assessments shall he collected like other taxes, that is, with and in the same manner as state and county taxes, as is the wording in section 2295, Revised Statutes.

It will be noticed that the assessments are to be placed upon the county duplicate, and are payable at the office of the county treasurer. The only warrant the county treasurer has for receiving payment of assessments is the county duplicate, and this duplicate has upon it only the collections to be made for the current year. The auditor has no authority to place anything upon the duplicate for the current year unless it is due and payable during that year. By section 1043, Revised Statutes, it is provided that the delinquent list and the fees of the treasurer shall be deducted from the total amount of the duplicate in the settlement of the treasurer with the county auditor, and that he shall be charged with the balance. Section 1044 provides that the delinquent list shall consist of the taxes and penalties due and unpaid, and requires the auditor to give to the treasurer a certificate of the taxes which have become due and payable and remain unpaid; but no certificate is authorized as to taxes or assessments which are not due and payable and cannot become due for a year or more to come. As only the treasurer’s fees and the delinquent list can be deducted from the total amount of the duplicate, and as taxes and assessments which are not due and payable, cannot go on the delinquent'list, it would follow in case the whole assessments, though not due and payable, should be placed upon the annual duplicate, as urged by counsel for defendant in error, that the treasurer would be charged with the whole assessment, and would have to pay the same, even though the respective installments would not become due for years in the future. Such a construction of the statute is absurd and should not be adopted by any court. The true construction is that the installments of assessments becoming due and payable in any one year are entered by the county auditor upon the county duplicate for that year, and are collected with and in the same manner as state and county taxes, and the subsequent installments as they become due and payable are placed upon the duplicate and collected in like manner.

Different auditors may have different methods of bookkeeping, unless uniformity is attained under Section 1041, Revised Statutes, but no auditor has any warrant of law to put upon the annual duplicate installments of assessments which are not due and payable during the year for which such duplicate is made. And installments of assessments which are not due and payable during the current year, and are therefore not upon the treasurer’s duplicate for that year, cannot be collected out of the proceeds of real estate sold at judicial sale, because they are not standing unsatisfied upon the annual duplicate. Installments of assessments are to be collected like other taxes; that is, with and in the same manner as state and county taxes, and such taxes cannot be collected out of such proceeds of sale unless they stand unsatisfied upon the annual duplicate. Ketcham v. Fitche, 13 Ohio St., 201.

In that case this court held that the amount due on a' sale for taxes, usually known as a tax sale, could not be paid out of the proceeds of the sale of real estate because the taxes included in such tax title did not stand unsatisfied upon the duplicate, the same having been paid by the purchaser at the tax sale and thereby removed from the duplicate. It was conceded in that case that the tax title was a valid lien upon the premises, and that in case the holder of the same had been made a party, an order would have been made for the payment of the amount due thereon, but held that such payment could not be made under section 77 of the tax law, now section 2854, Revised Statutes. In that case such payment could not be made under section 77 because the tax had been removed from the duplicate; and assessments not due and payable during the current year, cannot be paid out of such proceeds of sales, because, they have not yet reached the duplicate, and do not stand unsatisfied thereon. The treasurer has no jurisdiction over such unmatured assessments, and the auditor has no warrant of law for placing such assessments upon the annual duplicate of the treasurer.

The lien of such installments still remains upon the real estate just as the lien for general taxes remains on real estate after the day preceding the second Monday in April of each year, and yet when sold at judicial sale before the first day of October of such year, the taxes for that year, although a valid lien, cannot be paid out of the proceeds of the sale, but must be paid by the purchaser. Hoglen v. Cohan, 30 Ohio St., 436.

The same is true as to assessments. The installments that are rightly placed upon the duplicate which goes into the hands of the treasurer on the first day of October must be paid out of the proceeds of any judicial sale of real estate made on or after that date, but such installments must be paid by the purchaser when the sale is made before the first day of October. In the case at bar the sale was made in the month of May, and all installments due and payable at that time having been paid, it follows that the installments falling due thereafter, and to be placed upon subsequent duplicates, remained liens upon the real estate to be paid by the purchaser, and that the courts below erred in ordering such assessments to be paid out of the proceeds of such sale over the objections of the plaintiff in error.

The lien of a municipality on real estate for legal assessments remains on such real estate, unaffected by sales or transfers, and can be collected the same as other taxes, and in case of a sale under judicial process such municipality is neither a necessary nor proper party, for the mere purpose of having assessments paid out of the proceeds of sale, because the installments upon the annual duplicate of the treasurer will be paid out of the proceeds of the sale, when the sale is made on or after the first day of October, and if made before that day the lien will continue upon the lands sold, to be paid by the purchaser, and if not paid, to be collected' from the lands in his hands the same as other taxes. While the statute gives the owner of real estate the right to pay assessments and interest at any time, and thus free the real estate from the lien, such payment is at the option of the owner, and not at the option of the city; and when the owner refuses to pay the whole assessment and interest, the court has no right to compel him to do so by ordering such payment to be made out of the proceeds of the sale of the real estate. What the rule is to be in counties having a city of the second or third grade of the first class, as prescribed in section 1042, Revised Statutes, is not here involved and is not d’ecided.

The judgments of the courts below will be reversed, the demurrer of the plaintiff in error to the joint ansAver of the city of Dayton and Sarah Belle Whit-more will be sustained, and an order made that the money yet in the hands of the sheriff be paid over to the plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Williams, J.,

dissents from that portion of the third paragraph of the syllabus, which holds that neither the purchaser at judicial sale, nor the municipality has any right to have unmatured assessments paid out of the proceeds of the sale; and from the judgment.  