Monday, November 11, 2013

Fleming v. Morrison case brief

Fleming v. Morrison case brief summary
72 N.E.2d 499 (1904)

Plaintiff tax sale real estate purchaser appealed a judgment of the Court of Common Pleas of Hamilton County (Ohio) in favor of defendant county auditor. The purchaser became convinced that the auditor had not complied with the statutes applicable to the sale of forfeited lands, particularly Ohio Gen. Code § 5751, and that the deed was insufficient to convey good title, which he sought to establish through a declaratory judgment.


  • The court held that the auditor followed the statutory requirements up to and including the decree of forfeiture of the Court of Common Pleas, but, thereafter, failed to comply with the provisions of Ohio Gen. Code § 5750 as to any the forfeited land. 
  • He should have waited until the following November and then made a list of all forfeited lands. 
  • The question then became whether the purchaser should get his money back, even though he made a mistake of law. 
  • The state still owned the land forfeited to it and had possession of the purchaser's money, paid in good faith upon the presumption that a public officer, representing the state in the sale of its land, was doing so in full compliance with all legal requirements. 
  • The auditor, relying upon the prosecuting attorney and the opinion of the Attorney General, performed a void act, the result of which was to deprive the purchaser of his money, without giving him anything in return therefor. 
  • The purchaser was not responsible for any loss that the state might suffer in connection with these void sales, and any inconvenience that followed was due to the erroneous assumptions of the auditor.

The court declared that the sale of the forfeited land to the purchaser by the auditor was ineffective to transfer the title of the state to the purchaser and the purchaser upon prompt demand made upon the auditor was entitled to the return of the purchase price paid by the purchaser, but without any interest for the retention of such purchase price.

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