
    Davis v. Cincinnati.
    In an action under section 626 of the Municipal Code (66 Ohio L. 254), to enforce an assessment for the construction of a sewer, it is error, where the proper defense is made, to render a personal judgment against one in possession of the property assessed, but having no other interest therein than as lessee for a term of ten years; he is not an “ owner” within the meaning of that section; and it will make no difference, in such action, that the lease provides for the payment by the lessee of all assessments upon the property.
    Error to the District Court of Hamilton County.
    On February 1, 1862, George H. Pendleton, Elliott H. Pendleton, Martha L. Dandridgo, and Anna 0. Schech, being the owners in fee of certain premises, situated on Court street and Gilbert avenue, in the city of Cincinnati, executed a lease for the same to Samuel Davis, Jr., for the term of ten years, at a rent of $600 a year, payable quarterly, and placed him in possession. It was stipulated in the lease that Davis should pay all taxes, charges and assessments of every kind, which were or thereafter should be assessed, taxed, charged and levied on the premises or any part thereof, or which should in any manner depend upon or grow out of the said lease, during the term therein granted. At the expiration of the term, February 1, 1872, Davis continued in possession of the premises, holding over under a verbal agreement with the owners in fee to give him another term of ten years upon'the same terms and conditions as those contained in the written lease. He remained in possession until judgment was rendered in this case, as hereinafter mentioned, and for aught that appears is still in possession.
    • On May 8, 1872, proceedings were commenced in the common council of the city of Cincinnati, with a view to the construction of sewers in certain streets, among others in that part of Court street upon which the property in question abuts. That sewer was constructed by J. IB. II. Nolte, under a contract with the city made January 26, 1871, and an assessment by the frontage, amounting to $739.82, was, on June 12,1871, levied on the property in question.
    The assessment not having been paid, the city, suing for Nolte, brought suit in the court of common pleas, on February 2, 1875, against Davis and the owners of the fee, to recover the same, ashing in the petition a personal judgment against them and an order for the sale of the premises. Davis denied that he was the owner of the premises, and claimed that he was not liable to a personal judgment. The cause was submitted to the court, and on request the "facts and conclusions of law were found. The facts so found were substantially as above set forth, and judgment was rendered-against Davis for $810.21, the amount of the assessment, penalty and interest, and the property assessed was ordered to be sold to satisfy the amount so found to be due. The court further found that the owners in fee were not liable to a personal judgment. On error, prosecuted by Davis, the district court affirmed the judgment, and this petition in error was filed by him to reverso the judgment of affirmance.
    
      E. A. Ferguson, for plaintiff in error:
    Davis is not personally liable for the assessment. Boers v. Barrett, 2 Superior Ct. 67; Lore v. Howard, 6 R. I. 116; 
      Cross v. Railroad, 10 Gray,. 293; 8 Ohio, 106; 2 Swan’s Tenn. 301; Municipal Code of 1869, § 541.
    
      McGuffey, Morrill & Strunk, for tlie city, and Paxton (& Warrington, and F. K. Pendleton, for the owners in fee :
    Davis is personally liable, and the judgment against him was properly rendered. Blecker v. Ballon, 3 Wend. 262; Mayor v. Cushman, 10 Johns. 96; Oswald v. Gilfert, 11 Johns. 443; Sharp v. Elmore, 19 Wis. 121; Sharp v. Spier, 1 Hill, N. Y. 76 ; Astor v. Miller, 2 Paige, 68 ; Salisbury v. Hale, 12 Pick. 416 ; Holsam v. Abrams, 2 Duer, 435; Garner v. Hannah, 6 Duer, 262; Kearny v. Post, 1 Sandf. 105 ; Post v. Kearny, 2 Comst. 391; Buffalo v. Le Courteulx, 15 N. Y. 151; Bradbury v. Wright, Doug. 621; Giles v. Cooper, Carth. 125 ; Taylor’s L. & T. 15, 16, 39.
   Okey, J.

The single question is whether Davis was liable to a personal judgment for the assessment. The chapter on sewers in the municipal code (66 Ohio L. 119, §§ 612, 611), provided, among other modes for assessing the cost and expense of constructing main and local sewers, that it might be done according to frontage.

Section 629 of the same chapter was as follows: “ All assessments made under the provisions of this chapter shall be a lien on the lots or lands assessed. They shall be transferable, and may bo collected against the owner personally, or by enforcement of the lien upon the property subject thereto.”

The owner ” referred to in section 626 must, as a general rule, be one having a freehold estate in the premises asssssed: Perhaps exceptions to -the rule exist. See Rev. Stats. §§ 2733, 1181. The term owner ” does not, as a general rule, include the holders of chattels real. The assessment is on land, and it is an owner of land who is. liable to the personal judgment. We are clear that the term “ owner” does not include one having no other interest than as lessee for a term of ten years. Any other construction would lead to absurd consequences. A tenant holding for a month might be personally bound for permanent public improvements of the most expensive character.

Where a party is personally liable for an assessment, his liability is precisely commensurate with the lien upon the property. The only express exception to the rule that such party must be the owner of the fee, is found in section 511 of the municipal code, which, as amended in 1870 (G7 Ohio L. 80), is as follows: Where a special assessment is made on real estate subject to a life estate, such assessment shall bo payable by the tenant for life; but upon application by said life tenant to a court of proper jurisdiction, by action against the owners of the estate in fee, such court may apportion the cost of said assessment between said tenant for life and owner in fee, in proportion to the relative value of said improvement to their estates respectively, to be ascertained and determined by said court on principles of equity.” Other exceptions to the rule may exist, as already indicated.

But it is urged that here was a lease in which Davis expressly bound himself to pay all assessments, and that this lease had been renewed, so that it was in full force when the improvement was projected, and when the assessment became a lien upon the property; and that, in order to prevent circuity of action, a suit may be maintained by the city directly against Davis. But the liability to a personal judgment for an assessment of this character is statutory; such liability is confined to the owner of the property, and Davis, as we have seen, is not such owner.

We express no opinion upon the question whether, by foi'ce of the parol agreement between the owners of the fee and Davis, the liability of the latter to pay assessments did or did not continue after February 1,1872. But assuming that it continued to be, in all respects, the same that it had been during the preceding ten years, still the agreement between the parties cannot be considered in this statutory action. Whatever liability from Davis to the owners of the fee may exist, is a matter entirely between themselves, and with which the city and Nolte have no concern.

The judgment against Davis will be reversed, and the order of sale will be affirmed.

Judgment accordingly.  