Opinion
No. 32249
Decided March 21, 1951.
Taxation — Delinquent lands — Payment in installments — Undertaking by owner — Section 2672-3, General Code — Redemption of forfeited lands by former owner — Section 5746, General Code — Full amount named in statute required to be paid — Acceptance of lesser amount not authorized.
1. A person having title to lands upon which taxes and assessments have become delinquent may avail himself of the provisions of Section 2672-3, General Code, a part of the Whittemore Act. that "any such person being the owner of such real property * * * may * * * enter into a written undertaking * * * to pay the full principal amount of such taxes and assessments, so delinquent, * * * in ten annual installments," until the lien of such taxes is foreclosed and the property sold or until such lands are forfeited to the state and he is no longer an "owner" of such property.
2. Under the provisions of Section 5746, General Code, " the former owner" of a tract of land or town lot, which had therefore been forfeited to the state for nonpayment of taxes, may, at any time before the state has disposed of such land or lot, procure the relinquishment thereof by the state of all claim to such land or lot by paying into the treasury of the county in which such property is situated all the taxes, assessments, penalties and interest due thereon at the time of such payment.
3. The specific requirements prescribed by Section 5746, General Code, are conditions precedent to the redemption of lands forfeited to the state for taxes. Neither the county auditor nor county treasurer has any duty or authority, with respect to the redemption of such property, to accept less than the full amount required by the provisions of Section 5746, General Code.
APPEAL from the Court of Appeals for Cuyahoga county.
This is an action in mandamus which originated in the Court of Common Pleas of Cuyahoga County. The relatrix, Marguerite G. Monroe, is the owner of certain sublots located in the city of South Euclid. The respondents are John A. Zangerle, County Auditor of Cuyahoga County, and Leslie R. Monroe, County Treasurer of Cuyahoga County.
The issues were made by the petition of the relatrix and the joint answer of the respondents.
The petition alleges that the relatrix is the owner of certain sublots described in the county auditor's forfeited land sale which were to be offered for sale Thursday, May 26, 1949; that she is ready, willing and able to pay the taxes on the aforesaid sublots under the provisions of Section 2672-3, General Code, a part of the so-called Whittemore Act; that she has requested and demanded of the respondents that she be furnished tax bills and written forms of undertakings prescribed so that she may pay the taxes on the sublots in installments as provided in Section 2672-3, General Code; and that the respondents refused her request and refused to accept the payment of taxes in installments.
Relatrix prays for a writ of mandamus directing respondents to allow the relatrix to enter into an undertaking as provided in Section 2672-3, General Code, and to accept the payment of taxes as therein provided; that an order be issued restraining the auditor from selling the property until the hearing of this case; and that upon the payment of the taxes as provided under Section 2672-3, General Code, the respondent John A. Zangerle be ordered to restore the sublots to the tax duplicate in the name of the relatrix.
The respondents by joint answer admit substantially all the allegations of the petition but allege that the action which the relatrix is seeking to compel them to perform is not specially enjoined by law as a duty of these respondents. They aver that they are without authority in law to accept a tender of payment in installments under the provisions of Section 2672-3, General Code, subsequent to the forfeiture of the premises to the state of Ohio.
The facts upon which the case was submitted were stipulated as follows:
The relatrix is the owner of the property which was certified as delinquent, thereafter duly forfeited to the state and advertised for sale. Subsequent to the forfeiture and advertisement of the property for sale, but prior to the date of sale, relatrix made a tender of an amount sufficient to pay the taxes, assessments, penalties and interest, under Section 2672-3, General Code, which tender was refused by the county auditor and treasurer. The premises have not yet been sold. The relatrix at the present time is financially unable to fully redeem the property but is ready, willing and able to pay the amount due under the Whittemore Act.
The Court of Common Pleas found for the relatrix and issued a writ of mandamus as prayed for.
Upon appeal to the Court of Appeals on questions of law, the judgment was affirmed.
The case is before this court upon the allowance of a motion to certify the record of the Court of Appeals.
Messrs. Kuth Meyers, for appellee.
Mr. Frank T. Cullitan, prosecuting attorney, Mr. George W. Leddon and Mr. A.M. Braun, for appellants.
A single question of law is presented. After property has been forfeited to the state of Ohio, may the former owner redeem such property under the provisions of the so-called Whittemore Act, of which Section 2672-3, General Code, is a part? That section accords the privilege of paying delinquent taxes in ten annual installments.
The relatrix contends that the Whittemore Act is applicable even subsequent to forfeiture of lands for nonpayment of taxes, and that the right to take advantage of the provisions of Section 2672-3, General Code, exists until the sale of the property. This claim is based upon the theory that even after the lands are forfeited to the state the former owner has the equitable title and right of possession until such time as the same have been divested by sale thereof by the state or until the redemption thereof by the owner of the property.
The respondents' contention is that after lands are forfeited to the state, they may be redeemed by the former owner only under and pursuant to the provisions of Section 5746, General Code, and upon compliance with the provisions thereof. That section provides as follows:
"If the former owner of a tract of land or town lot, which has been so forfeited, at any time before the state has disposed of such land, or lot, shall pay into the treasury of the county in which such land or lot is situated, all the taxes, assessments, penalties and interest due thereon at the time of such payment, the state shall relinquish to such former owner or owners, all claim to such land or lot. The county auditor shall then re-enter such land or lot on his tax list, with the name of the proper owner."
Relatrix argues that Section 2672-3, General Code, must be read in connection with Section 5746, General Code, which would result in giving the taxpayer the right to elect whether he will enter into an undertaking to pay taxes in installments under Section 2672-3, General Code, or pay into the treasury the full amount of the taxes due at the time of payment as required by Section 5746, General Code.
Relatrix insists that the Whittemore Act has application to all lands registered delinquent, without distinction between lands which are foreclosed for taxes and those lands of lesser value which are subject to forfeiture to the state under Section 5718 et seq., General Code.
Section 2672-3, General Code, provides as follows:
"Any such person being the owner of such real property [upon which taxes have become delinquent] or the holder of a lien thereon may at such times, in lieu of making a tender as authorized by Section 2 [G.C. Section 2672-2] of this act, enter into a written undertaking in such form as shall be prescribed by the Bureau of Inspection and Supervision of Public Offices, to pay the full principal amount of such taxes and assessments, so delinquent, less penalties, interest and other charges for the year 1936 and prior thereto, and plus penalties, interest and other charges for the year 1937 and years subsequent thereto, in ten annual installments payable at the time prescribed by law for the payment of the second half of current real property taxes and assessments, with interest at the rate of four per centum per annum, payable annually, from the date of the written undertaking. The first installment shall be due and payable upon entering into such undertaking and shall be collected by the treasurer, who shall give a certificate therefor to the county auditor. Upon receipt of such certificate the county auditor shall note on the tax list and duplicate, and on the delinquent tax list, in such manner as the bureau may prescribe, the fact that such undertaking has been entered into; and thereafter, so long as such undertaking shall continue to be performed, the lands against which said delinquent taxes or assessments, penalties, interest and other charges are charged, shall not be entered on the foreclosure list, and shall not be published as provided in Section 5704 of the General Code as part of the list of delinquent lands, anything in the statutes of this state to the contrary notwithstanding."
It is to be noted that such section applies to "any such person being the owner of such real property," and provides that he may avail himself of the privilege of entering into a written undertaking to pay the taxes in installments. It is a prerequisite that title shall be in the person entering into the undertaking as owner thereof, and so long as the relatrix was the owner of the sublots in controversy she had an undoubted right to enter into a contract as provided in Section 2672-3, General Code.
Sections 2672-3 and 5746, General Code, are not in pari materia as contended by counsel for relatrix. Each is applicable to and operative under definite specified conditions. The former was originally enacted to meet a well known emergency situation in which it was imperative that relief be afforded property owners by providing a means of installment payment of taxes which had become delinquent. Accordingly, very great leniency in the matter of delinquency in taxpaying was provided by the Whitttemore Act, but surely it was not contemplated that after such delinquency had continued for such an extended period as to necessitate a forfeiture of the land to the state a further extension could be procured by merely paying the current taxes plus one-tenth of the delinquent taxes and then, upon default, repeat and continue the process indefinitely.
It seems evident that it was not contemplated that the provisions of Section 2672-3, General Code, should have any application to lands which had been forfeited to the state, for that would result in the nullification of the provisions of Section 5746, General Code.
The relatrix, by reason of the forfeiture of her lands to the state, had become a "former owner" and is so denominated by the provisions of Section 5746, General Code, which clearly prescribes how such "former owner" may redeem the property, which is by paying "into the treasury of the county * * * all the taxes, assessments, penalties and interest due thereon at the time of such payment." It follows that subsequent to forfeiture of the lands to the state for nonpayment of taxes redemption thereof may be accomplished only by compliance with the provisions of Section 5746, General Code.
By the amendment of that section, effective August 11, 1943, the requirements relative to the redemption of forfeited lands were not reduced or modified. On the contrary they were increased for, whereas previously redemption could be accomplished by the payment of taxes, assessments, penalties and interest " due at the time of such forfeiture," the statute as amended required the payment of "taxes, assessments, penalties and interest due thereon at the time of such payment." (Emphasis supplied.)
In view of the specific condition thus prescribed as a prerequisite to the redemption of forfeited lands it is difficult to understand how there can be an implication of an option to pay the full amount due or only current taxes and one-tenth of the delinquent taxes and the balance over a period of nine years.
Relative to the contention that there is a discrimination between a taxpayer whose lands are forfeited to the state and one upon whose lands a tax lien is foreclosed, attention is directed to the fact that the Whittemore Act does not in any way discriminate between the owners of such property. At the time the tax lien is foreclosed and a deed executed and delivered to the purchaser of such property, just as when upon the completion of the forfeiture of lands and the vesting of title in the state, the " former owner" is no longer an owner within the meaning of the Whittemore Act. The General Assembly has seen fit to grant an additional right to the "former owners" of forfeited lands which the state has not yet disposed of. This does not result in any discrimination between "owners" whose lands are delinquent. Whether any additional rights are to be granted them is a matter for legislative consideration.
For the reasons hereinabove stated the judgment of the Court of Appeals is reversed, the writ of mandamus prayed for is denied and the petition is dismissed.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT and HART, JJ., concur.