Opinion
No. 35868
Decided November 4, 1959.
Real property — Grantee's rights under quitclaim deed — Taxation — Forfeited lands — Right of redemption — Section 5723.03, Revised Code — Failure to redeem prior to conveyance at foreclosure sale — Conveyance incorrectly describing land conveyed.
1. The rights of a grantee under a quitclaim deed are no higher than those of his grantor at the time of the conveyance
2. Under Section 5723.03, Revised Code, the grantee of the heirs of a former owner of the real property, whose title has been forfeited to the state of Ohio, has the right to redeem such property at any time prior to the effective conveyance thereof by the state in a tax foreclosure sale.
3. Failure to redeem or to attempt to redeem real property by paying or tendering the taxes, assessments, penalties and interest prior to the effective conveyance of the property at a tax foreclosure sale precludes the grantee of the heirs of a former owner of the property, whose title has been forfeited, from asserting a claim against the purchaser at a tax foreclosure sale, even though the deed given the latter incorrectly described the land conveyed and a corrected deed is not executed and delivered until after such grantee has commenced an action to quiet title.
APPEAL from the Court of Appeals for Cuyahoga County.
Prior to his death in 1944, one Mike Vondra was the owner of sublot 62 on James Street in the city of Maple Heights, Cuyahoga County. Vondra died intestate in 1944, and no administration of his estate was ever had.
In the fall of 1953, plaintiffs contacted the heirs of Mike Vondra and entered into an agreement with them to purchase sublot 62. Following a title search by a title insurance company, which revealed the record title to be in Mike Vondra, the sale was consummated, and quitclaim deeds from the Vondra heirs to plaintiffs were executed, delivered and recorded by plaintiffs on January 22, 1954.
Prior to the purchase of this lot by the plaintiffs, the taxes thereon had become delinquent and the lot was included in an application of the county board of revision for an order of forfeiture for nonpayment of taxes. Such order was entered by the Common Pleas Court of Cuyahoga County on February 28, 1950, and as a result thereof the lot was sold to the defendant at a forfeiture tax sale on May 18, 1950. Defendant's deed, which erroneously designated sublot 60, was not recorded until July 22, 1954, six months after plaintiffs had recorded their deeds from the Vondra heirs.
Between May 1950 and January 1954, defendant received and paid certain tax bills made out in the name of Mike Vondra and, when taxes became delinquent, he entered into a "Whittemore agreement" prepared in the name of Vondra but signed by defendant. During all this time the property continued to be listed in the name of Mike Vondra on the auditor's duplicate and map records.
Having learned of defendant's claim to this lot, the plaintiffs instituted this action in September 1954 for declaratory judgment to quiet title. Thereafter, while this suit was pending in the Court of Common Pleas of Cuyahoga County, the defendant obtained from the county auditor a corrected deed purporting to convey sublot 62 and recorded the same on October 7, 1954. A cross-petition of defendant seeks to have title quieted in him.
The Court of Common Pleas entered judgment for plaintiffs on the grounds that defendant was estopped under general equitable principles from claiming title as against the plaintiffs, and that plaintiffs had a right to redeem the property as against the defendant because the defective auditor's deed did not vest title in the defendant prior to the institution of this action.
On appeal on questions of law and fact, the Court of Appeals for Cuyahoga County, without written opinion, entered judgment for the defendant, as follows:
"Decree for the defendant for the reason that the purchaser at auditor's sale is vested with good title against all prior claims. Exceptions. O.S.J."
The cause is before this court upon the allowance of plaintiffs' motion to certify the record.
Messrs. Burgess, Fullmer, Parker Weh and Mr. Charles A. Baker, for appellants.
Messrs. Woodle Wachtel, for appellee.
The plaintiffs, appellants herein, have posed three questions dealing primarily with the effect of the recording statute, Section 5301.25, Revised Code (Section 8543, General Code), on the situation here presented. Our view of the problem involved, however, limits our consideration to the question suggested by the defendant, as follows:
"Does the purchaser of real property at a county auditor's tax forfeiture sale, who, prior to the trial of an action to quiet title to the property, has secured an auditor's deed to the property in question, and has caused said deed to be duly recorded by the county recorder, have a right to a decree in equity quieting his title against the claim of one claiming as the grantee of the heirs of a taxpayer whose title had been forfeited to the state of Ohio, particularly when no person claiming through and under the former owner had ever attempted to redeem title to the property?"
The rights of the plaintiffs herein arose solely by virtue of the quitclaim deeds from the Vondra heirs. And they acquired through such deeds only that which the Vondra heirs had to convey. 5 Thompson on Real Property, 769, Section 2812; Bird v. Stimson, 197 Mich. 582, 164 N.W. 438. See Holly v. New York Central Rd. Co., 35 Ohio App. 1, 171 N.E. 367, and Lewis v. Akerberg, 100 Ohio App. 209, 219, 136 N.E.2d 372.
Section 5721.01 et seq., Revised Code (Section 5704 et seq., General Code), outline the procedure to be followed in the forfeiture of land to the state to satisfy a lien for delinquent taxes. That procedure was followed, according to the stipulation entered into by the parties, and no claim is made here of any impropriety therein.
The rights of a former owner, following an order of forfeiture, and of those claiming under him stem from Section 5723.03, Revised Code, which reads as follows:
"If the former owner of a tract of land or town lot, which has been forfeited, at any time before the state has disposed of such land or lot, pays into the treasury of the county in which such land or lot is situated, all the taxes, assessments, penalties, and interest due thereon at the time of such payment, the state shall relinquish to such former owner all claim to such land or lot. The county auditor shall then re-enter such land or lot on his tax list, under the name of the proper owner."
Even prior to the provisions of our statute for forfeiture and sale by the state, the right of redemption had been generally acknowledged and liberally interpreted. Masterson v. Beasley, 3 Ohio, 301. Since the enactment of the forfeiture and sale provision in 1859 (56 Ohio Laws, 212, Section 99 et seq.) the same liberality of construction has been followed. Plumb v. Robinson, 13 Ohio St. 298, 304.
It is conceded that at no time since their purchase of sublot 62 have the plaintiffs made any tender of the taxes, assessments, penalties and interest necessary to accomplish a redemption of the property under Section 5723.03, Revised Code. Any such tender prior to the time an effective conveyance was made by the county auditor to the defendant would have accomplished a redemption of the property and resulted in a consequent relinquishment by the state of all its claim to the property. Kinney v. Hoffman, Treas., 151 Ohio St. 517, 86 N.E.2d 774.
Even if we concede, although we do not find it necessary to so decide, that the deed which incorrectly described the lot purchased at the foreclosure sale by defendant did not effectively convey this property to the defendant, an effective conveyance was made when the auditor executed and delivered a corrected deed on October 7, 1954. Having failed to avail themselves of the remedies available to them under Section 5723.03, Revised Code, prior to the execution and delivery of such corrected deed, the plaintiffs can not now be heard to contend that defendant did not get a good and perfect title from the state. Kahle v. Nisley, 74 Ohio St. 328, 78 N.E. 526.
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
ZIMMERMAN, TAFT, MATTHIAS, HERBERT and PECK, JJ., concur.