Waite v. First German Evangelical Presbyterian Church

6 Ohio N.P. 434

• Court: Lucas County Court of Common Pleas
• Decided: July 1, 1897
• Status: Published

Opinion

Lemmon, J.

We understand the petition in this case to bo one setting out a sale of the lot mentioned, to the church society; that the defendant has failed to-comply with the terms of sale; has defaulted, and' sets up the amount which is due to plaintiff, and asks for a judgment, and that that judgment shall be declared as a lien upon this property. And the petition further avers that his defendant Charles-Hahn has, or claims to have, an interest in the property, and asks that-he be made a party, and the question is now made upon the answer filed by Charles Hahn, who answers in the-case, and the reply made thereto, and the motion now submitted to the court for a dismissal of the case.

Mr. Everett: “So far as Mr. Hahn is concerned. ”

The Court: So far as Mr. Hahn is concerned. If Mr. Hahn had not set up a title to the property — if he came in in answer to a summons and declared that he had a lien upon the property — we should have no hesitation in saying that that lien could be-adjudged in this action by this court-,, if it be essentially of the same character as the foreclosure sought against the church society, and whatever liens there may be upon one piece of property may be adjusted when a party seeks to foreclose any lien which he has, and it will be his duty, in order to obtain an effective sale to bring in all persons having claims upon and interests in the property before the court. We do not understand, however, that a person who claims a legal title tc the property can be, in such an action as that, compelled to come in and defend his title or show it up —we do not understand that the form of action here referred to and the form of action that is begun here, is such that a person having a legal title to property, and being in possession of the property, can be required to come in and show that he has a complete title to the property. We have always supposed, and we think there is very little doubt about it, that a party in possession of property may rest upon the fact that he will be maintained and supported iu his possession until some one comes forward and shows that he has a better title; and whoever recovers must recover upon his own title, and not because of defects in the defendant’s title. Now, we are informed that the petition here does not allege title in the plaintiff. If it does not, we do not see what cause of action the plaintiff shows here as against Hahn. Hahn comes in, and by his answer sets up that there were taxes assessed against this lot, and that in the year 1887, the auditor of the county offered the land for sale at delinquent tax sale, and that there were no bidders on the property, and that there was a return made of no sale for want of bidders; that subsequently, in the year 1888, it was again offered for sale for the taxes for which it had been previously offered for sale at delinquent tax sale and for the accrued taxes, and that upon this second offer it was purchased by defendant, Hahn, and that this lot was not redeemed from said sale, and that in the following June, perhaps, or in July, as the answer recites, the auditor conveyed the property, by good and sufficient deed, to Hahn. The answer proceeds to allege that he thereupon entered into possession, peaceably,and that he has remained iw possession of that property from that' time up to the present; that he has-' paid the taxes upon it from time te» time, and that he has made valuable’ and lasting improvements upon the property, and he asks that the case be dismissed as to him.

Now, upon the issue thus tendered, unless we are compelled by reason of the former holding of this court upon’ the demurrer, our judgment would be - that'there is no cause of action hew set up as against Mr. Hahn that could» be tried by this court, and the court’ would be compelled to sustain the' motion and dismiss the action as to" him. The action could prooeed, of course, as against the church society..

We do not get to the occupying claimant question until wo have disposed of the question which we have endeavored to state, and that is r-whether you have a cause of action,' here upon this issue as against the defendant Hahn, and we do not think' you have. If you have a cause of action as against Hahn here, then the occupying claimant Jaw would enable-you tc proceed at once, by a secondary-step, to avail yourself of the statute- and settle that. I think the reasons’ given by the court were correct, as> they are reported to me, upon the demurrer; that proceedings under the-occupying claimant law can only be-had in an action to reoover the prop~erty.