Calkins v. Smith

Real Property ? Taxation ? Payment of Delinquent Taxes by Mistake ? Complaint ? Insufficiency ? Appeal and Error. Appeal and Error ? Pleading ? Complaint ? Sufficiency may be Questioned for First Time on Appeal. 1. The sufficiency of a complaint may be raised for the first time on appeal; however, where it is so raised, every reasonable inference will be drawn from the facts stated necessary to uphold the pleading. Taxation ? Collection of Property Taxes ? Statute Mandatory and Exclusive. 2. The procedure outlined by Chapter 199, Revised Codes, for the collection of property taxes and the enforcement of tax liens is mandatory and exclusive. Default Judgment ? Sufficiency of Complaint ? Allegations to be Considered as Admitted on Appeal. 3. For the purpose of testing the sufficiency of the complaint in an action in which defendant suffered entry of default judgment against him, and where the sufficiency of the pleading was raised for the first time on appeal, all of the allegations therein must be considered as admitted. Taxation ? Obligation Created by Levy not Personal One ? When Obligation Terminated. 4. While taxes are levied against the owner of property, the property serving as a basis for computing the measure of his liability and as security for the discharge of the lien, the obligation created by the levy is not a continuing personal obligation, but one that is satisfied and terminated when the tax lien is foreclosed and the property sold on tax sale. - Page 454 Same ? Recovery of Tax Mistakenly Paid ? Necessary Allegation. 5. To state a cause of action for the recovery of a payment mistakenly made, the complaint must allege that the defendant for whose benefit the obligation was paid was legally bound in some way to pay the same, or that he retained and enjoyed the benefits thereof, thereby ratifying the obligation as his own. Same ? Failure to Pay Taxes ? Suit as for Debt not Authorized. 6. Failure of the owner of realty to pay taxes levied thereon does not ordinarily subject him to a suit as for a "debt" due within the ordinary meaning of that word. Same ? Action to Recover Taxes Mistakenly Paid ? Complaint ? Insufficiency ? Case at Bar. 7. Complaint in an action to recover taxes mistakenly paid by one who, after acquiring title to one-half of a parcel of land on which parcel taxes had been permitted to go delinquent for ten years, paid them, including those on that part apparently retained by the former owner of the tract, alleging among other things that defendant knew that the taxes were paid and that he was thus receiving the benefit of such payment, held insufficient to meet the rule (par. 5) that the pleader in such a case must show that defendant was under the legal obligation to pay the taxes, since, his property having presumably been sold on tax sale, his personal obligation to make payment was terminated by such sale.