Opinion
No. 34463
Decided December 7, 1955.
Real property — Registered under Torrens Act — Forfeited land sale for nonpayment of taxes — Recorder not required to issue new certificate of title, when — Compliance with procedure prescribed by Torrens Act required of purchaser — Mandamus.
APPEAL from the Court of Appeals for Marion County.
The property in question herein, formerly owned by one Hume as registered land under the Torrens Act, was forfeited for nonpayment of taxes and sold by the county auditor at a regularly and duly conducted forfeited land sale to one Herbolsheimer who recorded the auditor's deed and brought an action in the Court of Common Pleas to quiet title to the property thus purchased and to cancel a mortgage lien and a judgment lien against the property. The court granted the prayer of the petition and directed the cancellations.
Herbolsheimer thereafter conveyed the premises to Barnhart, relator herein, who conveyed a part of the premises to one Lau. Under authority of Section 8572-37, General Code (Section 5309.40, Revised Code), Lau requested Barnhart to furnish a duplicate certificate of title, which Barnhart was unable to do, since neither he nor his predecessor in title had a certificate. The county recorder, respondent herein, by reason of Section 8572-58, General Code (Section 5309.60, Revised Code), which provides that no registration or certificate of title shall issue upon a tax deed except on order of court, refused to issue duplicate certificates to anyone whose interest is derived from the tax sale.
By the instant action in mandamus, originating in the Court of Appeals, relator seeks a writ requiring the county recorder to issue registration certificates of title from Hume to Herbolsheimer, from Herbolsheimer to relator, and from relator to Lau.
Relator contends that the Torrens Act is unconstitutional, but, if the court finds the act to be constitutional, then he is entitled to a writ of mandamus as prayed for because the title to the real estate in question was quieted as provided for in Section 11901, General Code (Section 5303.01, Revised Code); and that he is not asking to have the land registered, but only that three certificates be issued to bring the registration down to date.
The Court of Appeals denied the writ.
An appeal as of right brings the cause to this court for review.
Messrs. Clark Arter, Jr., for appellant.
Mr. Ralph E. Carhart, prosecuting attorney, for appellee.
The question, as to the procedure to be followed in obtaining a new certificate for registered land forfeited for nonpayment of taxes and sold at an auditor's sale, was determined in the case of State, ex rel. Draper, v. Wilder, Recorder, 145 Ohio St. 447, 62 N.E.2d 156, a mandamus proceeding to compel the issuance of new certificates of title to registered land purchased at a tax forfeiture sale. In that case it was held that Section 5762, General Code (Section 5723.12, Revised Code), relating to the title acquired by the purchaser of land forfeited to the state for the nonpayment of taxes and sold by a county auditor at tax sale, "does not repeal by implication Section 8572-58, General Code, a part of the Torrens Act, setting forth the steps and procedure necessary to register title to theretofore registered land obtained under a tax deed, and an action in mandamus based on Section 5762, General Code, will not lie to require a county recorder to issue a new certificate of registered title upon presentation of such tax deed."
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.