(Fulton County Common Pleas,

1901.)

#### YODER v. TURNER et al.

Assessments for locating and constructing a ditch, become a lien on real estate from the *388date of the confirmation of the engineer’s report by the commissioners.

*Deed of Conveyance Containing Covenants of Warranty.*

A deed of conveyance with covenants of warranty “except as to taxes,” will not release the grantor from the payment of ditch assessments.

Files & Emerling,. for plaintiff.

Ham & Ham, for defendants.

Donnelly, J.

On June 2, 1900, the defendants executed and delivered to the plaintiff, a deed of conveyance for the S. Jé of the N. W- J4 of the N. W. J4 Sec. 26, T. 9. S. R. 2. E. Fulton county, O., and therein covenanted that they would warrant and defend the same against all claims whatsoever, save and excepting “one mortgage in the sum of six hundred dollars, which the grantee assumed and agreed to pay as a part-of the consideration;” and also “except taxes for the year 1900.”

At the time of the execution and delivery of said deed of conveyance, two ditches called “Chesterfield Ditch N. No. ”, and “Chesterfield Ditch EE- No. 3”, had been petitioned for across said premises, but the grantee had no knowledge of the filing of said petition.

On November 13. 1899, the commissioners cpnfirmed a report of the the engineer fixing rhe apportionment of the assesment for the construction of said ditches

On April 25, 1900, the commissioners found all working sections had been let, and ordered the several amounts for which said labor sold be placed upon a special duplicate, and at the same time made an order directing, the auditor to make out for the treasurer a special duplicate of said assessments.

June 2, 1900: Defendants executed and delivered to plaintiff their warranty deed of conveyance for said premises; at the time of delivery of said deed no part of either of said ditches had been constructed, and neither did the plaintiff have any actual knowledge of their location.

The questions litigated were:

First. Whether the ditch assessments were incumbrances against the land at the time of the delivery of the deed?

Second. If they were incumbrances at the time of the delivery of the deed to plaintiff, would the exception contained in the conveyance “except taxes for the year 1900”, release defendants from the payment of the ditch assessments ?

The case was tried to the court, who made *1*he following finding of facts and of law:

First. The court finds that the defendants, William H. Turner and Loella A. Turner, on June 2, 1900, executed and delivered to the plaintiff a certain deed conveying the lands in the petition described to plaintiff; that said deed contained covenants of warranty whereby the said defendants covenanted to and with the plaintiff that the title so conveyed was clear, free and unincumbered, and that they the said defendants, would warrant and defend the same against the claim or claims of all persons whomsoever, “except the taxes for the year 1900.”

The court does further find, that previous-to June 2, 1900, their had been located by the commissioners of Fulton' county, O., two ditches in and through the lands described in the petition, and that there had been assessed against said land by the engineer having said work in *charge, for*the cost of location and construction of said ditch a sum of money aggregating $41.22-

That on November 13, 1899, said assessments were duly confirmed by the commissioners. That on April 25, 1900, the commissioners found that all the working sections of said improvement had been let according to law and they ascertained that the cost and expense of constructing said ditch chargeable to the land in the petition described to be $41.22, and required the same to be paid in one instalment on or before December —, 1900, and they then-ordered that the assessment so made by them-should be placed upon the special duplicate, against the land in the petition described, and they caused an entry to be made upon their journal setting forth their finding and determination in said matter, and they then caused’ an entry to be made directing the auditor to make and furnish to the treasurer of the county a special duplicate with ássesssments against the land in the petition described-in said sum, and that afterwards the said auditor placed the-same upon the special tax duplicate for collection, and to be accounted for by the 'treasurer as taxes.

“The court does further find that the said plaintiff has paid the same to the treasurer of said county; and that the said ditch had been-petitioned for at the time of the execution and' -elivery of said deed, and that no part of said' ditch had been constructed and no work done-thereon at the date of the execution and de-very of said deed, and that the plaintiff had' no actual knowledge of the location of said uitch at the time of the delivery of said deed.

Upon the facts found the court find's as conclusions of law:

> “That irom and after November 13, 1899, the said sum of $41.22, the ditch assessments as aforesaid, were a valid lien against and en*389cumbrance upon the land in the petition described, and that on June 2, 1900, it was an encumbrance upon the real estate in the peti■tion described, and that it is included within the terms of the covenants of warranty contained in said deed, and that taxes and assessments are separate and distinct things, and that the exception in said deed does not release the defendants from the payment of said assessments.”

“Judgment for plaintiff.”

Judgment of common pleas affirmed by sixth-circuit court.

Haynes and Parker, JJ.