Reynolds v. Lieper's Heirs ( 1835 )

Hitchcock, J.,

delivered the opinion of the court:

By the act of March 14, 1831, the legislature of the state made provision for the sale of all lands which had theretofore, or that •should thereafter, become forfeited for the non-payment of taxes. .29 Ohio Stat. 298. Section 6 of the act contains the proviso, “that if any lands shall be sold by virtue of this act, the property of a Jeme covert, minor, or insane person, or person in captivity, tha owners or owner thereof shall have the right to redeem the same in the manner prescribed by law.” Unless the heirs of ThomasLeiper are within this proviso the court of common pleas erred, in permitting them to redeem. The argument urged to prove-that they are not within this proviso is based upon the fact that-the land was forfeited during the life of their ancestor, from which-fact it is inferred that, although he died before the sale, no interest descended upon the heir. But is this inference well drawn?

It is true that the legislature, in section 15 of the act of February 1, 1825, to amend the “ act defining the duties of county-auditors,” say that when land is forfeited to the state for the nonpayment of taxes, “ all the right, title, interest, and claim of the' former owner thereof shall be considered divested out of said: former owner and vested in the State of Ohio. 23 Ohio Stat. 89.. But to the same section is attached a proviso, securing to such former owner or owners the privilege of reinvesting *themselves with* the same land upon the payment of all taxes, penalties, and interest that may have accrued at any time prior to the-disposition thereof by the state. Notwithstanding the forfeiture, therefore, it is apparent that a valuable interest remained in the-former owner — the interest or right to redeem. And we have no-doubt that, in the case of the death of the ancestor, this interest, would descend upon the heir, and it would be strange had the= law been otherwise. Lands actually sold for taxes might be redeemed, and why should not those forfeited to the state be-redeemed?

By the law of March 14, 1831, before referred to, these forfeited lands are directed to be sold. But still the legislature were unwilling to derive the former owner of all power over the land.. In section 4 of this act, they in effect give further time to redeem,, until the second Monday of December of that year. Before that day the ancestor of the defendants died, and from the day of his-death up to the day of sale, his heirs would have the right to pay the taxes, etc., and prevent the sale. They were disabled, however, in consequence of their infancy, and but for the proviso to-section 6 of the act would have been forever excluded. From these considerations we have been brought to the conclusion that-they are within that proviso, and of course that the court of common pleas did not err in permitting them to redeem.

It is objected that, if allowed to redeem, it must be done “ in thet manner prescribed by law,” and that no law has been ever enacted prescribing the manner in which forfeited lands when sold, should be redeemed. There can be no doubt that the legislature, in this part of the act, have reference to the general provisions of law authorizing the redemption of lands sold for taxes.

The next error complained of is, that the court of common pleas permitted the heirs to redeem without requiring them to pay for improvements.

In this, too, we believe there was no error. Previous to 1831 ■such payment was required, but in that year the law was changed. By the “ act for the redemption of land and town lots sold for taxes,” 29 Ohio Stat. 300 it is provided “ that no purchaser of any land or town lots sold for taxes, nor any person claiming under him, shall be entitled to any compensation for any improvement, which he shall make on such land or town lot within two years' from and after the sale thereof.” *The improvements for

which compensation was claimed in this case were made within the two years. But it is urged that this law, although enacted on the 3d of March, did not take effect until the first day of June following, and the law providing for the sale of forfeited lands took effect from its passage, and as this latter law authorizes the redemption “in the manner prescribed bylaw,” the law then in force must have been intended; hence, under that law, the purchaser would be entitled to pay for improvements wherever made. It seems to the court that in this counsel is mistaken. It must be remembered that at the session in which these laws were enacted', the legislature were revising the laws generally. Among other acts they passed one for the sale of lands forfeited for the non-payment of taxes ; not only such as have been, but such as should thereafter be forfeited. It was intended that this should be a permanent law. In this law provision is made for the redemption of lands which shall be sold under it, in case the person or persons having the right to redeem shall, at the time of sale, be laboring under certain disabilities. They say such persons “ shall have the right to redeem in the manner prescribed by law.” By what law? No particular “ law ” then in force is referred to, but “ law ” generally. It seems to have been the intention to place the former owners of lands which had been forfeited to the s tate, and who were laboring under the specified disabilities when the lands were •sold, upon the same footing with the former owners of lands sold or taxes, and to allow them to redeem upon the same terms. And the law in force at the time the land should be sold, must be the law to govern when application was made to redeem.

The order of the court of common pleas affirmed, with costs.