Brewing Co. v. Hardway.

conveyed these premises to L. P. Schaus and J. H. Hibbert. On July 17, 1897, said premises were set off and assigned in severalty to the said L. P. Schaus in partition in and by virtue of an action pending in the common pleas court in said county, in which L. P. Schaus was plaintiff and Anna Chilcote and others were defendants, being case No. 10,119 of the records of court of common pleas of said county.

At the April term of said court for the year 1897 said partition was confirmed by the court and the clerk was ordered to have so much of said decree recorded as would show the transfer of title of said land. On December 11, 1905, L. P. Schaus and wife conveyed said premises to the Consumers' Brewing Company, a corporation, which is now the owner and holder of said premises and the plaintaiff in error in this action. The foregoing citations show a complete chain of title from the state of Ohio in 1846 to the Consumers' Brewing Company, plaintiff in error, covering a period of sixty-five years.

The only attack made upon said title by the defendants in error is their contention that the tax deed to Woodbridge for the forfeiture of lands for the nonpayment of taxes was not a legal conveyance and was void and passed no title for the reason of a defective description in the tax deed or upon the duplicate for the sale of forfeited lands to the state. Under the act of March 14, 1831, in force at the time these lands were sold for taxes, as well as in Sec. 2899 R. S., when lands are forfeited to the state for nonpayment of taxes all former titles to said lands are divested and extinguished, and the effect of the tax sale was to work a forfeiture of all the prior estates of the owner, and the auditor's deed for forfeited land sold under said act of March 14. 1831, is prima facie evidence of title, and may be given in evidence without any preliminary evidence. The statute throws upon a person seeking to avoid this deed the burden of showing that the proceedings prior to its execution were illegal. Such a deed is not only prima facie evidence, but the Supreme Court of Ohio in case of Ward v. Barrows, 2 Ohio St. 242, held:

"In favor of the acts of public officers, the law will presume all to have been rightly done, unless the circumstances of 29 O. C. C. Vol. 36

Licking County Appeals.

the case overturn this presumption; and consequently, as stated by the Supreme Court of Ohio in Bank of the United States v. Dandridge, 12 U. S. (12 Wheat.) 70, 'acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter.'"

The auditor's deed was prima facie evidence without any proof of the regularity of the proceedings resulting in the sale of the land. Turney v. Yeoman, 14 Ohio 208; Woodward v. Sloan, 27 Ohio St. 592.

The effect of this rule, as before shown, it to shift the burden of proof by imposing on the party asserting the invalidity of the deed the duty of showing it to be void for want of compliance with the statute in the proceedings leading to the alleged forfeiture. As we have said, the only objection to or defect of the tax deed is that is rendered void because the description is not good; that is, that the words "50 feet off the west half of lot 46" does not describe the property in controversy. This lot 46 is a lot 99 feet east and west and 198 feet north and south in the city of Newark, as shown by the plat offered in evidence. If this deed had described it as the "west half of lot 46" the description would be perfect, but it says “50 feet of the west half of lot number 46."

"Of" is a preposition meaning "belong to." "A description in an auditor's deed need not be of a greater certainty than any other conveyance by deed of individuals, and the same is to be literally construed to carry out the intention of the parties."

It is held in Schlief v. Hart, 29 Ohio St. 150, that "extraneous testimony is admissible to identify land conveyed by the following description, to-wit, 'a tract or lot of land known as the east half of the southwest division of Sec. 17, although such testimony shows that the land so conveyed is less in quantity than a mathematical half of the division.”

Without pursuing the discussion further as to the validity of the tax deed, how can the former owners have any interest in these forfeited lands to the state for nonpayment of taxes? The state owns the fee simple title to the property and can make

Brewing Co. v. Hardway.

a sale of the same under the law. To attack a title of this kind the fomer owner must show some irregularity that will invalidate the forfeiture. The only alleged irregularity in this deed is as to the description, and we do not think it such a de feet as to invalidate the title conveyed by the auditor in his deed made August 15, 1846. Under these deeds the plaintiff in error and its predecessors in title, from whom it claimed, have been in possession for over fifty years. We think it too late to attack the validity of this conveyance, and if the conveyance is legal it passes all the title, legal and equitable, owned by the prior owners of said premises, and vests in the plaintiff in error by succession an absolute estate in fee simple; and being of this opinion we must hold there was error in the court below in finding that the title to this property, or any part, or it is in the defendants, and for these reasons the judgment of the court below is reversed and the cause is remanded to the common pleas for new trial and further proceedings according to law. Powell and Shields, JJ., concur.

MUNICIPAL CORPORATIONS.

[Hamilton (1st) Court of Appeals, July 12, 1913.]
Swing, Jones and Jones, JJ.

PLEASANT RIDGE (VIL.) V. DAYTON LIMESTONE Co.

1. No Cause of Action against Village for Material Used in Street Improvement, without Compliance with Statutory Requirements. A cause of action is not stated against a village on an account for material used in improving its streets, where there is no allegation that a certificate issued as to there being sufficient money in the treasury and unappropriated to meet the proposed obligation, or advertisement was made for bids for the work, or that the obligation was to be met by the proceeds from an issue of bonds; nor can the argument prevail that because the material so furnished was actually used by the village it became morally bound to pay the claim.

Hamilton County Appeals.

ror.

ERROR.

Stanley W. Merrell, Assist. city solicitor, for plaintiff in er

Paxton, Warrington & Seasongood, for defendant in error. JONES, O. B., J.

Plaintiff in error seeks to set aside a judgment by defendant in error in the court of common pleas for $1,500 and interest for stone furnished and delivered for the improvement of its streets.

The record shows that the stone was furnished on four written orders addressed to the Lewis & Talbott Stone Co., three of them for 369 cubic yards of stone at $1.35 per cubic yard, signed by "John Petzer and William B. Thesing. S.S.G. Committee," and the other for 389 cubic yards signed by "John Petzer, S.S.G. Committee." No written contract was entered into and signed by the proper village officers, no advertisement for bids was made and no certificate from the village clerk was filed showing that money was in the treasury set apart to meet the proposed expenditure. The stone was delivered and used on the village streets. A partial payment was made on the account, and a question being raised as to payment for the balance claimed, an ordinance was passed by the village council February 18, 1907, "to allow the claim of the Lewis & Talbott Stone Company for material furnished for use on the streets of Pleasant Ridge," and the clerk was directed to issue a warrant against the "first available funds," and the treasurer was directed to pay over such amount to the Lewis & Talbott Stone Company or their attorneys or agents the sum of $1,500 in full settlement of said claim of the Lewis & Talbott Stone Company. No certificate was attached to such ordinance that there was money in the treasury to meet such expenditure.

The petition below does not state a cause of action. It fails to set out a valid contract, as it does not comply with the municipal code, under Sec. 3806, G. C., there being no certificate that there is money in the treasury set apart to meet the expenditure; or under Sec. 4221 G. C., which requires an advertisement when the expenditure is in excess of $500; nor does

Pleasant Ridge v. Limestone Co.

the evidence show that these provisions were complied with, and defendant therefore can not be held. Lancaster v. Miller, 58 Ohio St. 558 [51 N. E. Rep. 52]; Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372]; Comstock v. Nelsonville, 61 Ohio St. 288 [56 N. E. Rep. 15]; Wellston v. Morgan, 65 Ohio St. 219 [62 N. E. Rep. 127].

Plaintiff below however relied upon the case of Emmert v. Elyria, 74 Ohio St. 185 [78 N. E. Rep. 269], claiming that bonds were to be issued to raise money to pay for resurfacing the streets and that the stone furnished by plaintiff was used as part of such work. The record fails to support that claim.

Nor can the argument prevail that because the material furnished was actually used by the village it thus became morally bound to pay the claim. Such an argument might be heard in a suit to prevent the village from making such payment if it so desired, but it can not be used in a suit like this at bar where the village is resisting payment in a suit filed to recover the value of the materials. This argument was used unsuccessfully however in the case brought by Castner, a taxpayer, against the village of Pleasant Ridge, to enjoin the payment of the same claim involved in this case. The opinion of the common pleas court in granting a perpetual injunction is reported in Castner v. Pleasant Ridge, 18 Dec. 539 (7 N. S. 174), and it does not appear but that the decree entered therein is still in full force. The village set up this decree as a defense to this action. While the plaintiff here was not a party to the record in that case, and is therefore not concluded by that decree, yet it seems inconsistent that the same court should enter that decree enjoining the village from paying the claim, and then in this suit brough to enforce the same claim, enter a judgment compelling payment by the village.

The record also fails to show how the plaintiff here became the owner of a claim for materials furnished by the Lewis & Talbott Company.

The judgment below is therefore set aside and judgment will be entered for plaintiff in error.

Swing and Jones, E. H., JJ., concur.