Opinion
No. 163479.
1948-03-9
SWEET v. COURTNEY et al.
Frank Kaufmann (of Englebeck, Cotton and Kaufmann), (William A. Spencer and Alfred E. Vuillemin, both of Akron, Asst. Summit County Prosecutors, on the brief), for plaintiff. Duane Alexander and George Courtney, both of Akron, for defendants.
Action by Mary Delores Sweet against Maude Courtney and others to quiet title to several pieces of realty that had been purchased by plaintiff at a forfeited land sale.
Judgment for plaintiff.Frank Kaufmann (of Englebeck, Cotton and Kaufmann), (William A. Spencer and Alfred E. Vuillemin, both of Akron, Asst. Summit County Prosecutors, on the brief), for plaintiff. Duane Alexander and George Courtney, both of Akron, for defendants.
WATTERS, Judge.
This is an action to quiet title upon several pieces of real estate, being certain vacant lots bought by plaintiff at a for feited land sale of these and other delinquent (tax) lands sold by the auditor upon proceedings had upon application of the Board of Revision of Summit County, in case No. 159,430 filed in this court on November 29, 1946, by virtue of General Code, §§ 5718-1a, 5718-1b and 5718-1c.
No objections are claimed by the defendants as to the correctness of the proceedings had under said sections just mentioned in the case proper, except that the defendants contend that there were defects in the prior proceedings up to the time of the filing of the suit, by reason of which the judgment of the court in the case proper was void or at least voidable.
By stipulation of the parties the issues before the court are as follows:
(1) It is claimed by the defendants that the tax forfeiture sale was invalid by reason of the fact that the display notices (Defendants' Exhibits E and F) published by virtue of General Code, § 5704, did not comply with the provisions of law, in that they contain none of the applicable provisions of General Code, § 2653, and do not contain the time and method of payment of taxes.
(2) The next objection is to the delinquent tax notice which was published in the Beacon Journal on April 17, 1944 (Defendants' Exhibit A), in that it does not contain the following language in substance at the end thereof, to-wit: ‘and notice is hereby given that the whole of such several tracts, lots or parts of lots will be certified for foreclosure by the county auditor pursuant to law, or forfeited to the state, unless taxes, assessments, penalties and interest are paid.’
(3) The objection to the publication in the Summit County Democrat of May 3, 1944, May 17, 1944, and May 31, 1944 (see Defendants' Exhibits B-1, B-2 and B-3), is that said delinquent tax notice was published in three instalments, each instalment carrying the same heading, the first two instalments not having attached to the end thereof the words in substance in quotation marks under objection (2) above. It being also defendants' claim that in effect the instalment publications were separate advertisements or publications, and each instalment should have contained said quoted language or the substance thereof.
As to objection one (1) above, the display notices so called (Defendants' Exhibits E and F) speak for themselves, but one is reproduced now in actual substance but not in type form, both notices being the same as to wording:
‘Delinquent Taxpayers Notice
‘After two weeks publication of this notice in accordance with the provisions of Sec. 5704, G.C., there will appear in this newspaper a list of lands and lots on which the taxes and special assessments or either remained unpaid at two consecutive semi-annual tax settlement periods. The names mentioned in the list are the names of the owners of record as of April 12, 1942. This explanation is made as a matter of fairness to those whose names appear in this list according to law, but who through no fault of their own and because of failure of other parties to fulfill their obligations, find their names listed.
‘Parcels on which the delinquent taxes and assessments are paid in full prior to date of publication or upon which a contract is entered into with the county treasurer for payment in accordance with the provisions of Sec. 2672, G.C., will be omitted from such list.
‘C. L. Bower,
‘Summit County Auditor.’
‘April 5-12, 1944.
The last paragraph of said notice referred to Section 2672, General Code, which is also referred to generally as the Whittemore Plan.
Auditor Bower also testified (see Stipulation) and the court finds it to be a fact: ‘That at the time the display notices (Defendants' Exhibits E and F) were published, the Treasurer's books for the regular collection of taxes were closed, and at that time it was not known when the next regular collection of taxes would commence.’
The Court finds it to be a fact that the publication of the delinquent land list in the Beacon Journal of April 17, 1944, did not contain the quoted language in objection (2) above either actually or in substance. I refer to the language beginning ‘And notice is hereby given, etc.’ and ending ‘are paid.’
However, the Court finds that the second publication in the Beacon Journal of May 1, 1944, contained said language.
Reference is made to the stipulation concerning the affidavit of Mr. Robert Wheeler of the Beacon Journal, and to the effect that he would so testify if called.
The Court finds the facts stated in said affidavit to be true.
The Court finds as to the matters or objections contained in (3) above that the delinquent land list was published in the Summit County Democrat at the times indicated in said exhibits (B-3, B-2 and B-1) in two sets of three instalments to each set.
The first and second instalments of each set did not contain said language quoted above beginning, ‘And notice is hereby given, etc.’ either actually or in substance, but the last instalment of each set did contain said language.
The Court finds that no question is raised concerning the correctness of procedure in the forfeited land case, No. 159,430 mentioned above, except of course in so far as the other objections raised may affect the judgment and sale thereunder.
The entire file in said case is before this court by stipulation, it not being desired to tie up said file in this action, but it being agreed that the Court could treat the same fully as if in evidence herein.
The Court finds as a matter of fact and law that the proceedings had in said cause were correct and proper as far as the proceedings therein are concerned.
Findings of Law
Before the amendment of G.C. § 5704, said section provided in part as follows: ‘Within thirty days after delivery of the duplicate the county auditor shall cause a list of the lands on such delinquent list and duplicate to be published once a week for two consecutive weeks, * * *,’ etc. (Italics by this court.) Interpreting this statute above in April, 1932, and before said statute was amended effective August 11, 1943, the Supreme Court of Ohio, 1932, in 125 Ohio St. 152, 180 N.E. 700, 81 A.L.R. 1239, Miller v. Lakewood Housing Company et al., in the third syllabus held as follows: ‘(3) Under the foreclosure proceedings on delinquent lands prescribed by the present Code, the publication by a county auditor of the list of delinquent lands in his county, in accordance with the provisions of section 5704, is not mandatory.’ (Italics by this court.)
In other words, they held that the word shall in the section of then G.C. § 5704, imposed no mandatory duty upon the auditor to publish such delinquent list, but that the same was directory only.
Following said decision of the Supreme Court, the legislature amended said Section 5704, G.C., effective August 11, 1943, and provided:
(A) ‘It shall be mandatory upon the county auditor to cause a list of the lands on such delinquent land list and duplicate to be published twice, within sixty days after the delivery of the duplicate to the county treasurer * * *’ etc. ‘(A)’ designation by this court.
(B) ‘provided, however, that, before such publication, it shall also be mandatory upon the county auditor to cause a display notice of the forthcoming publication of the delinquent land list and duplicate to be inserted once a week for two consecutive weeks in two newspapers * * *’ etc. ‘(B)’ designation by this court.
Then the last paragraph of the statute reads as follows:
(C) ‘There shall be attached to the list a notice that the delinquent lands will be entered upon the foreclosure list, as provided by law, unless the taxes, assessments, penalties and interest are paid.’ ‘(C)’ designation by this court.
This court has for convenience of reference marked the above passages or parts thereof in the statute by the designations ‘A’, ‘B’ and ‘C’.
There can be no question now that requirements ‘A’ and ‘B’ are mandatory. The legislature having in mind the Supreme Court's ruling above expressly used the words ‘it shall be mandatory’ in each instance, but when they came to the last paragraph in the amended section, they did not use the words ‘it shall be mandatory’ but simply, ‘There shall be attached,’ etc.
Therefore, in this court's opinion, the requirement set up in (‘C’) is only directory and not mandatory. So the failure to include said notice referred to in (C) actually or in substance has no effect on the proceedings.
We are here concerned with G.C. § 5704 in the form as amended effective August 11, 1943.
As to the Display Notice (Objection No. 1). It is true that General Code, § 5704 also provides that: ‘The copy for such display notice shall contain the applicable provisions of Section 2653 of the General Code, the times and methods of payment of tax as provided by law, together with any other information which the county auditor may deem pertinent,’ etc.
Then in G.C. § 5707 the legislature sets forth a form of publication, indicating that the delinquent list publication shall be in substance as follows. Then follows the form of notice.
In this court's opinion, the requirements set forth are again directory only and not mandatory. As was said in 125 Ohio St. at page 161, 180 N.E. at page 703, supra, ‘Whether a statutory requirement is mandatory or directory depends on its effect. If no substantial rights depend on it and no injury can result from ignoring it, and the purpose of the Legislature can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the statute will generally be regarded as directory; but, if not, it will be mandatory. This is the rule generally followed in this state in deciding whether statutory provisions constitute conditions precedent whose omission invalidates further action under the statute in question.’
Had the legislature wished to make these provisions or requirements mandatory, they could have done so specifically as they did elsewhere in amending Section 5704, effective August 11, 1943.
The publication of the display notice called attention to the Whittemore Plan as available, and it was impossible then to determine just when the treasurer would open the books for the regular payment of taxes.
Furthermore, following this came the regular court procedure and publication of notice thereunder, which procedure was according to law, and at which hearing all concerned had ample opportunity to present objections.
It is common knowledge that when one's real property is advertised because the taxes thereon are delinquent, unless the owner does something about it, steps will be taken to sell it or otherwise force collection.
As to the objection that the publication in the Summit County Democrat was split into three instalments and only the last one contained or had attached the notice claimed necessary in objection (2) and (3) set forth under the finding of facts, the court holds:
That the statute, section 5704, G.C., expressly permits publication of the delinquent list to be made in instalments, and even if the ‘notice’ mentioned were held to be a mandatory requirement, there is no requirement at all that each instalment published contain such ‘notice.’
The absence of such a requirement makes it all the more apparent to the court that the legislature did not intend to make said ‘notice’ mentioned in the last paragraph of G.C. 5704 a mandatory requirement.
Furthermore, as stated above, the next step in the whole procedure is under G.C. § 5718-1, etc., where the board of revision can declare certain lands omitted from the list to be foreclosed. Then an action is filed in common pleas court under G.C. §§ 5718-1a, 5718-1b and 5718-1c.
Under Section 5718-1b we find: ‘Upon the filing of such application (mentioned in Section 5718-1a) the court shall fix a day for the hearing of objection to the action of the board of revision in making such a list of omitted lands and shall order the clerk of the court to cause notice of the time and place of hearing, together with a list of such omitted lands, to be published once a week for two consecutive weeks in two newspapers as provided in section 5704 of the General Code. * * * The list as published shall contain the names of the owners as found on the auditor[’]s duplicate, of such lands at the time they were omitted, a description of the property as it appears on the tax list and the amount of taxes, assessments and penalties due at the time of omission. The legal notice shall be in substance as follows:' Then follows a substantial copy of the notice, which is not reproduced here.
No question is raised in this action concerning the sufficiency of this notice.
The latter section, 5718-1c, sets forth the procedure in court. It provides for a hearing by the court at which objections may be made, etc. Among other specific objections listed is (4) which provides: ‘That the lists provided for in Section 5704 and 5718-1b of the General Code have not been published according to law.’
In this court's opinion, at said hearing by the court was the time to raise the questions here presented bt the defendants.
Section 5718-1c also provides: ‘If it appears that such proceedings were regular and in conformity with law, the court shall so find and such finding shall not be collaterally attacked,’ etc.
The use of that term ‘collaterally attacked’ is specific and means just what it says. The proceedings must be attacked at the court hearing and in that proceeding. To hold otherwise would leave the status of the property purchased up in the air. Appeal from the court's decision is specifically provided.
I am not unmindful of various decisions to the effect that an attack setting up want of jurisdiction to render a judgment is not a collateral attack though made in another suit. I do not think the legislature intended to countenance any further attack after the court has ruled, except appeals from that decision directly to the upper courts as provided.
If this were not the intention of the legislature, in order to clarify titles of lands purchased at forfeited land sales, they would not, in this court's opinion, have specifically set up the grounds of objection, nor would they have specifically stated that the matter was not subject to collateral attack.
No question is raised to the proceedings had in this matter under Sections 5718-1a, 5718-1b and 5718-1c, except that the defendants claim prior defects in the procedure as set forth under the facts, which defendants claim vitiated the court's action taken under the G. C. sections just enumerated. No appearance was made or objection raised by these defendants or any one of them at the time of the court hearing under said sections in case No. 159, 430 Summit County Records of Common Pleas Court. The defendants had their full day in court where proper proceedings were had under General Code, §§ 5718-1a, 5718-1b, and 5718-1c, in case No. 159430. Even had they raised the question now raised as to defects in the procedure prior and up to the filing of the forfeiture case, the court hearing the matter would have had to rule that the objections were not well taken for the reasons already discussed in this opinion, and in any event said defendants cannot now raise said objections, because they are estopped to do so, and to allow same would be to allow a collateral attack on the judgment in said cause No. 159430.
The plaintiff's title will therefore be quieted against all and each of the defendants.
A journal entry will be drawn in accordance herewith allowing exceptions to all defendants.