Turney v. Collister, Treas. , 42 Ohio App. 371 ( 1932 )

This action is brought by Hubert J. Turney, an attorney at law, in his own right, to enjoin the collection of about a thousand dollars of taxes assessed against certain lots in addition to that portion which still remained in the name of the Miles Richmond Realty Company, all of which had been sold at sheriff's sale.

From the pleadings, arguments of counsel and briefs, we learn that the Miles Richmond Realty Company owned a tract of land consisting of a great number of lots on South Miles road, in Bedford township, Cuyahoga county, Ohio, and that, while owning said allotment, it mortgaged the entire tract of land to the Union Trust Company for the sum of four thousand dollars; that afterwards it sold to various persons seven lots out of said allotment; that deeds were issued for said lots and transfers made to the various persons who were the grantees in said deeds.

It also appears that the Miles Richmond Realty Company failed to get a release from the mortgage of the Union Trust Company on the lots thus sold. Ultimately, because of the failure of the Miles Richmond Realty Company to pay said mortgage when it became due, or because default had been made in payment, the Union Trust Company brought an action in foreclosure, and all the persons, including the various purchasers of the lots that had been sold off, which stood in their names, were made parties, together with the Miles Richmond Realty Company; that then, theretofore, and thereafter Turney, plaintiff in this action, was counsel for the said realty company, and appeared for it in the court as its attorney; that two of said lot owners employed counsel and filed an answer, and their two lots were omitted from the sheriff's sale, but the other defendant lot owners, although named and served with summons, did not answer or otherwise plead in said action, and therefore the Union Trust Company took an order of sale against all of said lots, together with those which had not been released, but not against the two that had been released. On order, the sheriff thereupon appraised said property at something over $24,000, which indicates that the lot owners, had they answered, could have compelled the Union Trust Company to exhaust the lots which had not been transferred before it sold their lots, as the two lot owners who did file answers succeeded in having done.

It further appears from the record that Hubert J. Turney, who was counsel for the Miles Richmond Realty Company, bought said land in at two-thirds of the appraisal, or something over $16,000. The record likewise shows that, before the sheriff's sale, Turney, as counsel for the Miles Richmond Realty Company, inquired of the county treasurer and county auditor as to the amount of taxes that were due upon the property, and, of course, having in mind the name of the Miles Richmond Realty Company only, as it was the principal defendant in the case, the county treasurer reported only the taxes that were due against said company, which amounted to something like $3,500, although there are filed in the record the tax bills against the other seven lots which had been transferred to the individual owners, which show a balance due of about a thousand dollars upon those lots, exclusive of the property which stood in the name of the Miles Richmond Realty Company.

Turney, as counsel for the Miles Richmond Realty Company, and for the purpose of protecting, as he claims, the property owners who had bought lots, who it is now claimed had defective deeds, that is, deeds that were signed by officers who had no authority to sign said deeds, bought the whole tract in for the purpose of clearing the title and protecting these purchasers of said lots, which might easily have been accomplished by having those said lots released from the mortgage, inasmuch as the mortgage was only about one-fourth of what the property sold for. The order of distribution shows, first, the payment of the costs of the clerk, George Wallace, and of the sheriff for selling, including his poundage, and as a part of the costs fifty dollars was paid to the Abstract Company for making an abstract, as required by the rules of the court, and $3,570 due the treasurer for taxes delinquent upon the property that stood in the name of the Miles Richmond Realty Company was likewise paid, and then the sum that was due upon the Union Trust Company's mortgage amounting to over $4,761 for principal and accrued interest, and the order then shows a balance of something over $7,358 payable to the Miles Richmond Realty Company, which the record shows was receipted for by H.J. Turney, counsel for the company.

It is now sought to restrain the county from collecting the taxes and penalties upon the lots that had been transferred to individual owners who had received deeds, because, as it is claimed, the unpaid taxes were assessed against the property after the conveyance to Turney from the sheriff. An examination of the record will show that this is not true. They were assessed against these lots prior to the sheriff's sale, and, if the transferees did not have good deeds, they could have easily procured good deeds without going to the extraordinary remedy of enjoining the county treasurer from collecting taxes, for the taxes and penalties thereon were due, not against the Miles Richmond Realty Company, but against the individual owners who had purchased said lots.

Now, if it was necessary for Turney to purchase this land for the purpose of protecting the lot owners, he could easily have taken out of the $7,000 that went to the Miles Richmond Realty Company, as is shown by the order of distribution, $1,000 and paid these taxes, at least they were not assessed against this property after he purchased it from the sheriff. They were due upon said property prior to the sale and charged against said property. I have not examined the abstract or certificate of title, but one would almost hazard the guess that that contained the sale of certain lots from off the entire tract, and nobody could buy that without having full knowledge of the situation, especially one could not buy it who stood back of the whole proceedings and bought the land for the purpose of protecting these individuals. If the Miles Richmond Realty Company had promised to pay these taxes, and had not paid them, then it would be perfectly proper and right to have paid the amount that was due on these lots for taxes out of the money that was returned to the realty company, as shown by the order of distribution. If the Miles Richmond Realty Company had not agreed to pay them, they were certainly chargeable to the lots owned by the individuals who were made parties to this suit and failed to answer, and those persons cannot complain because they are not released from these taxes in the manner in which they now seek to deprive the county of what is justly due it, nor can they quiet title against the county treasurer in the manner in which it is sought to be done in the instant case. Such a plan would be operating a fraud upon the county and upon the county treasurer as an officer of said county.

After going over this whole record, we have come to the conclusion that the plaintiff is not entitled to the relief he seeks, either as to an injunction or as to quieting title, and the petition will therefore be dismissed.

Petition dismissed.

LEVINE, P.J., and WEYGANDT, J., concur.