Opinion
Nos. 29438 and 29439
Decided June 9, 1943.
Real property — Lands registered under Torrens Act — Former Section 8572-56, General Code — Special assessments — Landowner not liable therefor and may enjoin collection, when — Assessing authorities failed to file notice or list lands with recorder.
Under the provisions of Section 8572-56, General Code (repealed 117 Ohio Laws, 480, but effective until August 18, 1937), owners of real estate registered under the Torrens Act, who do not petition for or otherwise induce public improvements beneficially affecting their property, are not liable for special assessments levied to pay the costs of such improvements and are entitled to an injunction against the collection of the assessments, when the assessing authorities have failed to file notice of the assessments or a list of the assessed lands with the county recorder for notation upon the certificates of title. ( Curry v. Lybarger, 133 Ohio St. 55, second paragraph of the syllabus; Shaker Corlett Land Co. v. City of Cleveland, 139 Ohio St. 536, first paragraph of the syllabus, approved and followed.)
APPEALS from the Court of Appeals of Cuyahoga county.
Section 8572-56, General Code, now repealed, was a part of the chapter entitled "Registration of Land Titles." During the time this section was operative, the city of Parma and the county of Cuyahoga duly inaugurated certain public improvements beneficially affecting the real estate involved in these proceedings, the title to which had previously been registered under the so-called Torrens Act.
However, there was a complete failure on the part of the assessing authorities to file any notice of the assessment proceedings or any list of the lands assessed with the county recorder for notation on the registration certificates.
Henry Groene, father of the appellee Benjamin Groene, owned registered real estate in the city of Parma at the time the resolutions declaring the necessity for the improvements and imposing the assessments were adopted. He also owned the property at the time the improvements were made. Benjamin Groene acquired the property from his father in November 1940. The appellants, the auditor, treasurer and board of county commissioners of Cuyahoga county, in their joint answer admitted Benjamin Groene's ownership.
The appellee Julia Wedics owned her registered real property in the city of Parma at all times involved herein.
None of the property owners named did anything in relation to the public improvements mentioned. They did not petition for them or protest against them, but maintained an entirely passive attitude.
The present actions were brought in the spring of 1941 by Benjamin Groene and Julia Wedics, respectively, as plaintiffs, to have the assessments and re-assessments, levied against their properties on account of the improvements, declared null and void, to enjoin their collection and to require their removal from the duplicate.
The relief prayed for was granted by the trial court and, upon appeal, the Court of Appeals affirmed.
Orders of certification bring the cases here for disposition on their merits.
Mr. Karl J. Ertle, for appellees.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Saul S. Danaceau, for appellants.
It is said in the case of Dillon v. Broeker, 178 N.C. 65, 100 S.E. 191, that the purpose of the Torrens Act is to secure by decree of court a title to land impregnable against attack, to make a permanent and complete record of the exact status of the title, with all liens, encumbrances and claims against it, and to protect the registered owner against all claims or demands not noted on the book for the registration of titles.
Section 8572-56, General Code, as effective until August 18, 1937, applies to these controversies. It provided:
"When in a city * * * or county, an ordinance, resolution or order is passed * * * to make any * * * public improvement * * * the whole or a portion of the expense of which may be assessed or levied upon real estate, if any registered land * * * is affected * * * the clerk of the board or council passing such ordinance, resolution or order * * * shall file in the recorder's office a notice of the passage or issuance thereof, giving a list of the lands assessed * * *. Unless there is filed with the recorder, within ninety days after the passage or issuance of such ordinance, resolution or order, such notice or list of lands, registered lands shall not be liable for such assessments." (Italics ours.)
In the case of Curry et al., Commrs., v. Lybarger, Recorder, 133 Ohio St. 55, 11 N.E.2d 873, this court had occasion to interpret and apply Section 8572-56, General Code. The second paragraph of the syllabus holds:
"Under the provisions of Section 8572-56, General Code (prior to its repeal effective August 18, 1937), it was essential that a notice of the passage of an ordinance or resolution providing for a public improvement, the expense of which was to be levied on real estate, and a list of the lands assessed or to be assessed be promptly filed with the county recorder as a prerequisite to the imposition of a valid assessment lien upon lands registered under the Torrens Act."
Later, in the case of Shaker Corlett Land Co. v. City of Cleveland, 139 Ohio St. 536, 41 N.E.2d 243, the rule was laid down in the first paragraph of the syllabus that:
"Under Section 8572-56, General Code (repealed 117 Ohio Laws, 480), an owner of lands registered under the Torrens Act who does not petition for or otherwise participate in securing improvements thereon, is entitled to an injunction against the collection of a special assessment levied to pay the cost thereof, when there has been a failure to file notice of the assessment and list of assessed lands with the county recorder for memorialization upon the certificate of title."
On the other hand, this court has taken the position that an owner of registered lands who has petitioned for improvements, and the purchaser of such lands from the owner, with knowledge of the installation of the improvements, the assessment, its certification to the county treasurer and its non-payment, are equitably estopped from obtaining injunctive relief against the collection of the assessments, notwithstanding the failure to file notice of the assessments and a list of the assessed lands with the county recorder. Amrich v. Boyle, Treas., 136 Ohio St. 325, 25 N.E.2d 850; Shaker Corlett Land Co. v. City of Cleveland, supra.
The appellants herein now insist that we go still further. They contend that the provisions of Section 85712-56, General Code, requiring the filing of notice and the list of assessed lands, should be adjudged to apply only to those owners of registered lands who have been prejudiced by the failure to file, and that protection should not be extended to owners who have in no way been misled or injured and whose property has been benefited by the improvements.
To accept such contention it would be necessary to ignore the plain language of Section 8572-56, General Code, and to reverse the holdings in the Lybarger and Shaker Corlett Land Company cases. This we are unwilling to do.
From a practical standpoint it does seem unfair that other property owners must bear an added burden through the neglect to bring registered lands within the operation of assessments levied against them, but we can discover no legal basis to rectify the injustice. One's attitude toward the Torrens Act is beside the point. So long as Section 8572-56, General Code, remained the law, it was entitled to recognition and observance.
There being no error in the judgment of the Court of Appeals, that judgment is affirmed.
Judgment affirmed.
MATTHIAS, HART and WILLIAMS, JJ., concur.
WEYGANDT, C.J., BELL and TURNER, JJ., dissent.
Plaintiffs in their respective cases came into a court of equity seeking equitable relief. It is fundamental that he who seeks equity must do equity. In these cases real estate owners are asking that the burden of paying for improvements to their respective properties shall be shifted to the general public because a public servant failed to discharge his duty. There is no showing that the property owners were injured in any manner by the failure of the public official or anyone else.
The Torrens Act requires notice but such notice is for the protection of prospective purchasers and lienors. There is no reason for notifying a property owner of an improvement completed on his own property.
The improvements to plaintiffs' property were made under Sections 6602-1 et seq. and 6602-17 et seq., General Code. It is not disputed that all of the steps outlined by the statutes were taken and created valid liens upon all the real estate affected which had not been registered under the act. If the plaintiffs had purchased their respective properties after these improvements had been made and there had been a failure to comply with the Torrens Act, I would readily agree that the liens could not be enforced against them. But where owners have stood by and allowed their properties to be improved under statutory proceedings they should not be allowed to shift the burden of the cost of such improvements to the general public because of the omission of a clerk to do his duty. No injury accrued to these owners. They had been given notice that the improvements would be made and that the cost thereof would become liens on their respective properties.
What was said by Judge Myers in the case of Amrich v. Boyle, County Treas., 136 Ohio St. 325, 326, 25 N.E.2d 850, is applicable here, to wit:
"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."
In the Amrich case the property owners had signed the petition requesting the city to make the improvement which, of course, made a stronger case than the one at bar. But where one stands by and allows the improvements to be made and the procedure for creating liens on the benefited property is followed, we see no difference in principle.
WEYGANDT, C.J., and BELL, J., concur in the foregoing dissenting opinion.