
    ESTOPPEL AS TO COLLECTION OF STREET ASSESSMENTS.
    [Circuit Court of Hamilton County.]
    Isabella M. Bell v. The City of Norwood et al.
    Decided, March 10, 1906.
    
      Assessments'—lor Street Improvement—Bar of the Statute as to Collection of—Reservation in Deed as to Payment of—Estoppel— Burden of Proof.
    
    1. The bar of the statute against a municipality as to the collection of a street assessment, levied prior to the act of April 25, 1904, does not begin to run on the several installments until each of said installments becomes due and payable.
    2. The burden of proving an estoppel against a property owner as to a street assessment is upon the treasurer seeking to enforce the collection. ,
    
    3. The intention of a grantor and grantee as expressed in the recital in the covenant of -warranty, “except maturing street assessments on Floral avenue which the grantee assumes and agrees to pay,” is construed in this case to be that the grantor was to be relieved from any liability on account of said assessment, and not that the contract should inure to the benefit of the municipality.
    Jelkb, P. J.; Swing, J., and Giffen, J., concur.
    Prior to the act of April 25th, 1904 (97th O. L., 403), whatever statute of limitation ran in favor of the property owner and against the municipality did not begin to run until each of the several installments became due. Whatever bar may' op-crate as between the property owner and the municipality, must begin to run from the same date. While the assessment became a lien from the time the ordinance was passed, yet the statute did not begin to run on the several assessments until they became due and payable, like the postponed payments provided for in a mortgage.
    We are therefore of the opinion that the plaintiff is barred from maintaining her action as to the first installment of said assessment, but that she may maintain the same as against all subsequent installments.
    • It is contended by the county treasurer in the interest of and on behalf of the city of Norwood, that the plaintiff herein is estopped from contesting the assessment on Floral avenue because the deed contains in the covenant of warranty, the following sentence: “Except maturing street assessments on Floral
    avenue which the grantee assumes and agrees to pay.” This is all the evidence we have before us. The question arises whether the rule laid down in the case of Caldwell v. Columbus, 37th Weekly Law Bulletin, 270, affirmed in the 56th O. S., 759, or the rule laid down in Walsh et al v. Sims, Treasurer, 65 0. S., 211, applies. It turns upon the question of fact as to whether or not there was an allowance of a definite sum made to the grantee as part of the consideration. Of course if the grantee has been allowed a sum certain, and has practically been a depository, or trustee, of such sum for the payment of the assessment on Floral avenue, it makes no difference to the grantee whether such assessment is legal or illegal. On the other hand, if there has been no such allowance to the grantee, and this exception, of the covenant warranty is to be considered merely as a contract between the grantor and grantee that grantor shall be relieved from any assessment, then grantee is not estopped from setting up and availing himself of the illegality of any assessment.
    This court has heretofore held that the Floral avenue assessment is illegal and void, and the Supreme Court has sustained this conclusion. The burden of proving the estoppel against the property owner is upon the treasurer. Looking then to this deed, and in the absence of other testimony, we find that the intention of the contracting parties was that tbe grantor was to be relieved of any liability on the warranty on account of this Floral avenue assessment, but it was not intended to make a contract which should inure to tbe benefit of the city of Norwood or make the grantee the custodian of a definite sum of money for the payment of this assessenmt.
    We therefore find on the equities for the plaintiff, and a decree may be had accordingly.
    
      W. li. Collins and L. F. Hanger, for plaintiff.
    
      Oliver G. Bailey, contra.
     