Stewart v. Clark

The opinion of the court was delivered by Kingman, C. J.:

The plaintiff in error brought his action on a note and mortgage. The mortgage contained this clause: “ The mortgage to one Steele, and all other incumbrances, if any, on said land are to be fully paid and removed from said land by said E. Stewart, his heirs or assigns, before any further payments are to be made on this note and mortgage.”

The only question for decision was whether there was any incumbrance on the land. The taxes for 1862 were all paid except twenty-five cents road tax. The defendants having shown that fact, rested; and the court decided that the same was an incumbrance, and decided that no right of action had accrued. Unpaid taxes levied on land are an incumbrance on the land. Long v. Moler, 5 Ohio St., 271 ; Mitchell v. Pills bury, 5 Wis., 407 ; Hutchings v. Moody, 30 Vt., 655 .

*211 The counsel for plaintiff in error shows by an examination of the several laws of that date, that the road tax for 1862 would appear on the tax roll of 1863, which are shown to have been paid. Yery well; admit he is right, and it is apparent that the unpaid road tax appearing on the roll in 1862, was the delinquent road tax of 1861, which was rightfully on the roll for 1862; and this is as much an incumbrance as though it were for another year. The judgment is affirmed.

Yalentine, J., concurring. Brewer, J., not sitting in the case.