Delphos Realty Co. v. Wilson , 90 Ohio App. 544 ( 1951 )

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County in an action in which the plaintiff-appellee, Delphos Realty Company of Dayton, Ohio, was granted a decree for specific performance of an agreement entered into with the defendant-appellant, Charles O. Wilson, involving the sale of real estate.

The matter was presented to the court on the pleadings and an agreed statement of facts. The record shows that on July 18, 1949, the plaintiff entered into a written agreement with defendant, whereby defendant agreed to sell and the realty company agreed to buy a certain tract of land in the city of Dayton. The agreement provided for the payment by the plaintiff of a consideration of $8,750 and for the delivery of a warranty deed by the defendant, both of which provisions were complied with by the respective parties. The written agreement provided further that "same to be clear and free of all encumbrances excepting taxes and assessments after June, 1949, installment." The record shows further that on the date of purchase the records of the office of the county treasurer of Montgomery county showed that there existed upon such real estate unpaid taxes and assessments amounting to $1,108.92.

Several years prior to the sale the defendant entered into contracts under the Thomas-Zoul Act (117 Ohio Laws, 32) which provided for the payment of delinquent taxes and assessments over a period of ten years as now authorized by Section 2672-3, General Code. The plaintiff made numerous demands upon the defendant for the payment of the delinquent taxes and assessments, but the defendant refused to make payment and denied he was required to make payment under the terms of the agreement.

The court must determine whether, under the written agreement, the defendant was required to discharge the unpaid taxes and assessments which had accrued prior to June 1949. The record shows that the defendant has paid all current taxes and assessments and all installments of delinquent taxes and assessments under the Thomas-Zoul Act up to and including June 1949.

The sole question for determination is whether the defendant is obligated to pay the remaining installments of delinquent taxes and assessments under the terms of the contracts entered into pursuant to the Thomas-Zoul Act.

The defendant contends that after he entered into the contracts under the provisions of section 3 of the act (now Section 2672-3, General Code), such delinquent taxes and assessments took on the character of current taxes and assessments and that under the agreement the grantees assumed and agreed to pay such taxes and assessments due and payable after June 1949.

The statutory provision does not support the contention of the defendant. Under the provisions of the Thomas-Zoul Act (since superseded by the Whittemore Act), the taxpayer was not permitted to enter into a written contract with respect to the payment of taxes and assessments unless and until such taxes and assessments became delinquent and were encumbrances upon the real estate. Section 3 of the Thomas-Zoul Act (now Section 2672-3, General Code), in part, provided:

"Upon receipt of such certificate the county auditor shall note on the tax list and duplicate, and on the delinquent tax list, in such manner as the bureau may prescribe, the fact that such undertaking has been entered into; and thereafter, so longas such undertaking shall continue to be performed, the landsagainst which said delinquent taxes or assessments, penalties,interest and other charges are charged, shall not be entered onthe foreclosure list, and shall not be published as provided in Section 5704 of the General Code, as part of the list of delinquent lands, anything in the permanent statutes of this state to the contrary notwithstanding." (Emphasis ours.)

Section 6 of the Thomas-Zoul Act (now Section 2672-6, General Code), in part, provided:

"In case of any default in the payments under the undertaking provided for in this act, the county treasurer shall enter on the duplicate the date and the fact of such default. Thereupon such undertaking shall be canceled of record in the office of the treasurer and a certificate of such cancellation shall be given to the county auditor, and such officer and all otherofficers authorized by permanent law in this state to act in thepremises, shall proceed to enforce the payment and collection ofsuch delinquent taxes, assessments, penalties and interest, inthe manner prescribed by the permanent law of the state therefor * * *." (Emphasis ours.)

Under the provisions of these sections the encumbrance on the real estate was not removed by the defendant entering into an undertaking to pay such delinquent taxes and assessments over a period of ten years under the Thomas-Zoul Act. Such unpaid delinquent taxes and assessments did not become current taxes and assessments. The provisions of the statute (Thomas-Zoul Act) simply stayed any further proceeding by the proper officers "authorized by permanent law in this state" to enforce the payment and collection "in the manner prescribed by the permanent law." The Thomas-Zoul Act did not supersede Section 5704, General Code, but merely suspended its operation so long as the taxpayer did not default in the payments under the undertaking. The delinquent taxes and assessments on the property in question still remained an encumbrance and such encumbrance existed at the time the contract was entered into. Under the written agreement the defendant was obligated to discharge this encumbrance. 11 Ohio Jurisprudence, 932, 937, Sections 63, 66.

As we find no error in the record, the judgment is affirmed.

Judgment affirmed.

HORNBECK, P. J., WISEMAN and MILLER, JJ., concur.