9 N.W.2d 35 | Mich. | 1943
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *139 Plaintiffs brought suit to quiet title to the undivided one-half of the west one-half of the southeast quarter, with certain exceptions, of section 12, township 26 north, range 8 east, Gustin township, Alcona county, Michigan. They claim title under State tax land deeds issued by the auditor *140 general for unpaid taxes for the years 1920 to 1926, inclusive, and 10 years' occupancy thereunder. Notice of reconveyance was properly filed and recorded. It was served upon Lillian G. McEwan, defendant and sole appellant herein, but not upon all the other interested parties. In July, 1929, six months after the filing of the notice of reconveyance, plaintiffs entered into possession of the property and immediately repaired one fence along the railroad right of way running through the land and also another fence at the edge of the swamp next to the land of an adjacent owner in order to keep their cattle within bounds. They used the lands, which were of very poor quality, for pasturage. They also thinned out the wood and took what they wanted for their own use. They later built 100 rods of new fencing. They also paid all the taxes on the property for the 10 years. Plaintiffs' claim is based upon adverse possession of the property continuing for the period of 10 years or more under color of the tax deed from the auditor general. All defendants herein with the exception of Mrs. McEwan were either defaulted or their interests were acquired by plaintiffs. Mrs. McEwan filed a cross bill asking that the tax deeds be declared null and void and plaintiffs be enjoined from asserting any right, title or interest in the undivided one-half interest in the property involved. She claimed that the statutory notice of reconveyance was not properly given and that adverse possession must continue for at least 15 years before validating the title. The trial court, after a careful analysis of subsection 2 of 3 Comp. Laws 1929, § 13964 (Stat. Ann. § 27.593), held there had been 10 years adverse possession which began six months after filing of notice for reconveyance, and that the plaintiffs were entitled to decree quieting title against Mrs. McEwan unless she would *141 agree to reimburse plaintiffs for one-half of the amount paid in acquiring the tax titles plus 5 per cent. interest and one-half of the present value of the new fencing, the case being one in equity in which all the parties sought equitable relief.
The trial judge was presented with the construction of 3 Comp. Laws 1929, § 13964 (Stat. Ann. § 27.593), of which we quote the pertinent parts:
"Hereafter no person shall bring or maintain any action for the recovery of any lands, or the possession thereof * * * unless such action is commenced: * * *
"2. Within 10 years, where the defendant claims title under a deed made by some officer of this State * * * authorized to make deeds upon the sale of lands for taxes assessed and levied within the State;
"3. Within 15 years in all other cases."
Can defendant McEwan claim any title under a tax deed within the meaning of this statute after nonaction for over 10 years on the ground of plaintiff's failure to serve notice of reconveyance on all interested parties after plaintiffs have been in possession of the property? 1 Comp. Laws 1929, § 3466 (Stat. Ann. § 7.119), provides that until notice has been given, persons claiming title under a tax deed shall be forever barred from asserting such title. Tax title proceedings are always closely scrutinized and strictly construed. McVannel v. Pure Oil Co.,
"The statute does not contemplate that the deed must be good, for then no limitation would be necessary to protect the possession. A claim which is consistent with the face of the deed, and which is asserted for 10 years with possession, is all that the law requires."
Again, in Reilly v. Blaser,
"The statute protects parties entering under tax titles, whether good or bad, after 10 years occupancy. * * *
"Purchasers of tax titles take no more than the deeds give them, provided they are seasonably attacked; but, when they go into possession, they have a right to require all attacks to be made within the statutory period. There is no reason for importing into the statute a new condition, and for saying that for some infirmities the deeds shall be assailable for a longer period than for others."
See, also, Lasley v. Kniskern,
Some doubt was cast upon these early decisions in Lawson v.Bishop,
The trial court properly found that the possession by plaintiffs was adverse to appellant when possession is held by claim of title under tax deed, for as a rule it is obviously hostile to that of the original owner. Sparrow v. Hovey,
However, even assuming that plaintiffs' claims of possession were insufficient to establish its title, appellant would not be entitled to the affirmative relief she seeks for she failed to do equity when given the opportunity by the court. Plaintiffs were entitled to reimbursement for payment of all taxes which *144
were incurred for the benefit of the estate. Horton v.Salling,
Error is assigned in admitting the tax deeds in evidence without proving the validity of the proceedings under which they were rested. They were admissible for the purpose of showing possession under color of title. Simon v. School BoardDistrict No 2,
Appellant claims error because the court refused to strike both plaintiffs' reply to defendant's amended answer and also plaintiffs' answer to defendant's cross bill of complaint. She charged that neither set forth the substance of the matters relied upon by plaintiff. Court Rule No. 23, § 2 (1933). There was no abuse of discretion by the trial judge. The purpose of the court rule is to expose fictitious defenses. The substance of plaintiffs' claims is fully set forth in their bill of complaint and defendant could claim no surprise. If appellant was not satisfied with plaintiffs' pleadings, it could have asked that they set forth their claims with greater particularity. There is nothing in the court rule *145 to indicate that a motion to strike is the proper remedy.
It becomes unnecessary to consider whether Act No. 206, § 73a, Pub. Acts 1893, as amended by Act No. 52, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 3466, Stat. Ann. 1942 Cum. Supp. § 7.119), being an amendment to the former act (1 Comp. Laws 1929, § 3466), applies in the present case. Such amendment provides that the person who has been properly served with notice to redeem and failed to do so may not defend on the ground that some other person or persons entitled to notice were not also served with such notice.
Judgment affirmed, with costs.
BOYLES, C.J., and CHANDLER, NORTH, STARR, WIEST, BUSHNELL, and SHARPE, JJ., concurred.