Summary
In Amrich, the court held that an owner of registered land who had actually petitioned for the land improvements was equitably estopped from claiming that the assessment lien was invalid.
Summary of this case from In re CowanOpinion
No. 27737
Decided February 28, 1940.
Assessments — Landowners signing improvement petitions estopped to enjoin collection, when — Clerk of council failed to comply with Torrens Act — Section 8572-56, General Code.
Where owners of land registered under the Ohio Torrens Act (Sections 8572-1 to 8572-118, General Code) sign petitions requesting a municipality to make street improvements abutting on their properties, and pursuant thereto such improvements are made and assessments levied and certified to the county auditor but the clerk of council fails to certify the assessment rolls or notice of passage by council of the resolutions and no memorial of the same is spread on the respective Torrens certificates of title to such lands, as required by Section 8572-56, General Code, such landowners are estopped from asserting such failure as a basis for injunctive relief from the collection of such assessments.
APPEAL from the Court of Appeals of Cuyahoga county.
Plaintiffs are owners of land registered under the Torrens Act, Section 8572-1 et seq., General Code (103 Ohio Laws, 914). Some of these plaintiffs, and the only ones concerned here, signed petitions requesting the city of Parma to make improvements by laying pavement in front of their properties, the cost to be assessed on a foot front basis. Pursuant thereto the improvements were installed and the city auditor certified the assessments to the county auditor but the clerk of council failed to prepare and file with the county recorder the assessment roll or any notice of the passage of the resolutions by council, and no memorial of the same has been spread upon the respective Torrens certificates of title to such land as provided in Section 8572-56, General Code (repealed, 117 Ohio Laws, 480).
Later, plaintiffs filed this action in the Court of Common Pleas of Cuyahoga county to restrain the city and county officials from proceeding with the certification, levying and collection of the assessments, on the ground that there had been a complete failure to comply with Section 56 of the Torrens Act, Section 8572-56, General Code. The Court of Common Pleas made a finding in favor of the defendants and denied the relief prayed for. Thereafter plaintiffs appealed the case upon questions of law to the Court of Appeals which reversed the judgment of the Court of Common Pleas and entered a final order in favor of plaintiffs. A motion to certify the record was granted by this court.
Mr. Karl J. Ertle, for appellees.
Mr. William C. Graves and Mr. Herschel G. Holland, for appellants.
Upon the threshold of the consideration of this cause we are met with the age-old maxim that he who seeks equity must do equity. This cause presents a question of equitable estoppel. The Torrens Land Registration Act is not a system designed to notify the owner himself of any liens or other encumbrances. Rather it is a system for notifying third parties. It is not claimed by defendants that these special assessments may be collected from innocent purchasers of the properties or even mortgagees thereof. It is conceded that since there was no compliance with Section 8572-56, General Code, the assessments could not be enforced against third parties.
But what about these plaintiffs who signed the petitions and requested the city to make the improvements? The improvements requested were pavements laid in front of and for the benefit of their own properties. It was their act that caused the required legislation by the city to be set in motion. May they now come into a court of equity to ask that the cost of improving their property, their streets, be shifted to other taxpayers by reason of the failure of the clerk of council to perform a duty designed not for their benefit but for the benefit of third parties — the world at large? Clearly not. To hold otherwise would be to misapply one of the most ancient and fundamental principles of equity. Much was stated in the brief of plaintiffs about whether any assessment liens were created or exist on their properties. Since the plaintiffs under equitable estoppel are not entitled to maintain this action, we are not called upon to determine that question.
Plaintiffs cite the decision of this court in Curry et al., Bd. of Commrs., v. Lybarger, County Rec., 133 Ohio St. 55, 11 N.E.2d 873. It need only be stated that there was no principle of equitable estoppel involved in that case.
The judgment of the Court of Appeals will be reversed and the judgment of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.