9 Mich. 332 | Mich. | 1861
Rogers, the plaintiff below, brought his action of ejectment against Amberg, the defendant below, and claimed title under three several deeds from the Auditor General, on sales for the taxes delinquent for 1854, 1855 and 1856.
The plaintiff introduced these deeds in evidence, and proved that the defendant claimed title to the premises, and rested.
The defendant objected to the introduction, of the deeds, on the ground that the lands which they purported to convey were insufficiently described; which objection was overruled by the court, and the deeds admitted.
The lands are described in the declaration and in the-several deeds, as “the west half of the southwest fractional quarter of section twenty - eight, in town one south of range twelve east, containing fifty acres more or less, in the county of Wayne and State of Michigan.”
The defendant introduced in evidence the official plat of the United States survey, of the entire south west fractional quarter of said section, from which it appeared that said fractional quarter had not been subdivided, and that it contained one hundred acres, of an irregular shape, having six very unequal sides, but in general shape somewhat resembling a triangle, with the acute angle at the east, formed by the center or quarter line of the section on the north, and by the rear of several claim lines on the southeast, and extending east beyond the centre of the section so as to include a portion of what would have constituted a part of the southeast quarter of the section-
The defendant then introduced the official tract book of the United States land office, by which it appeared that the whole of said southwest fractional quarter was entered by J. L. Leib, as one parcel, containing one hundred acres, date of entry not stated. Here the defendant closed. No assessment roll was introduced by either party, nor was any evidence given tending to show by what description the land has been assessed.
Though several other questions were raised by the bill of exceptions, yet as the counsel for the plaintiff in error chose to waive them on the argument, and expressed the desire to rest the case entirely upon the insufficiency of the description, we shall express no opinion upon the other questions presented by the bill.
The first inquiry is, whether this description was sufficient for the purpose of assessment, and, if not, then secondly, whether it can be held sufficient, under the proof in this case, for the purpose of a sale for taxes. Both questions depend upon the statute.
The twenty - third section of the act of 1853 (Comp. L. § 804), in providing for the description of lands on the assessment roll, enacts; “The description of real estate shall be as follows:” and then proceeds in several distinct subdivivisions to provide for as many distinct classes of cases. We are called upon to notice only the second and third subdivisions (it being admitted that this case does not fall within either of the others). These are: “2. If the tract be the subdivision of a section authorized by the United States for the sale of the public lands, it shall be described by a designation of such subdivision, with the number of the section, township and range. 3. If the tract be less or other than such subdivision, it shall be described by a designation of the number of the lot or tract, or of other lands by which it is bounded.”
I think, therefore, the case falls clearly within the third subdivision, and having no designation by “number,” it must be described by the designation of “other lands by which it is bounded.” It is urged that this description is a substantial compliance with this third subdivision, because by necessary implication it designates the lands by Avhich it is bounded. This may be said of any description provided for by any of the other subdiAdsions of this section, but I do not think this is a fair interpretation of the statute. One principal object of the statute doubtless was to secure such a description as would enable parties interested readily to ascertain whether their lands Avere taxed or advertised for sale; and the express designation of other lands by which it is bounded would be one of the best means of accomplishing this end; while an implied designation of such other lands Avould have little, if any, such tendency. The Legislature had a clear right to determine what should be a sufficient description for these purposes ; and having thus determined the question, it is not for the court to say that
I can see no plausible ground for holding that any of these provisions should be construed as directory merely. If any provision of the act is to be construed as essential and mandatory, it must be the description of the land; the very subject matter to which most of the other provisions are auxiliary. To treat these provisions in relation to description as merely directory would be to annihilate all intelligible distinction between what is directory and what is imperative.
As an original description for assessment, therefore, the description contained in these deeds is insufficient.
But, secondly, does it therefore follow that the description is insufficient for the purpose of a sale for taxes?
If the statute had made no provision by which the description of the land as assessed might be reduced .or altered before sale, then no valid sale could be made by a different description from that by which it was assessed; and the assessment roll not having been given in evidence, we should be compelled to presume the land was assessed by the same description as that contained in the deed. But the statute has expressly provided for such alteration of the description .intermediate the assessment and sale. It has done this by providing (§49 — Comp. L. §831) for the payment to the township treasurer of the tax on “a
But it is urged by the plaintiff in error, that there is no evidence that the whole tract was assessed, and after-wards reduced by payment on the other half. It is a sufficient reply to this objection to say that the contrary has not been proved.
The statute (§ 89 — Comp. L. § 871) declares that “the deed shall be prima facie evidence of the regularity of all the proceedings, from the valuation of the land by the assessors to the date of the deed inclusive, and of title in
The effect of these provisions is, I think, to change the burden of proof to the party claiming against the tax deed, and to raise the presumption that every thing has been done which was competent to be done under the statute, to render the sale of the land- described in the deed a valid sale: in other words, if any proceedings might have been had under the statute which would authorize the sale of the land described in the deed, they must, until a reasonable presumption to the contrary has been raised by proof, be presumed to have been taken in accordance with the statute. Such was the view taken of a less forcible presunxption in the act of 1848, by the late Supreme Court, in Lacy v. Davis, 4 Mich. 140, and I can see no ground for doubting its correctness. Indeed I am unable to see how any intelligible effect short of this can be given to the presumption which the statute creates.
There was, I think, no error in the ruling of the court below on this point, and the judgment should be affirmed.
I have been unable to bring my mind to the conclm sion that- the description in the deed is not good for the purposes both of an assessment, and of a sale where the tax has been paid on a part of an entire description. That it is good for the latter I have no doubt; and that being the case it seems strange it should not also be good for the former.
The whole statute should be liberally construed. It is to raise a revenue for the support of government. This is its primary object; all else is secondary: and it should be construed in such a way as to secure the revenue, and at the same time protect the rights of the tax payer and
The language of the act, I admit, is imperative; but shall is sometimes construed to mean may, and should always be so construed when necessary to give effect to the intention of the law - giver; which intention I think in the present instance was to secure a perfect description of the land, with a view to render the lien; thereon for the tax operative. “A thing which is within the intention of the makers of a statute, is as much within the statute as if it were within the letter of the statute; and a thing which is within the letter of the statute, is not within the statute unless it be within the intention of the makers.” (Thompson Ch. J. in The People v. The Utica Insurance Co. 15 Johns. 380.)
I think the judgment should be affirmed.
I agree in the’ conclusion of my brother Christiancy, that the description of land in the deeds now in controversy is entirely invalid for purposes of assessment. Whether, as between individuals,- the west half of an irregular frac, tion would be construed as bounded by a north and south line dividing it into portions of equal area, is, I think, doubtful as a general proposition; but in the view which I have taken of the case, is not important, and I express no decided opinion upon it. I think that, as soon as it was shown that no such government division existed, the burden of proof was thrown upon the tax purchaser to explain how a description improper for assessment became proper, if proper at all, when used in a conveyance from the Auditor General.
The tax deed is prima facie evidence- of the regularity of the proceedings under the law, and of title, unless containing on its face proof of illegality. I am disposed to concede that, until the land office proofs showed the contrary, it was fair to presume that the government had made a subdivision answering to that in the deeds, and that there was nothing on the face of the deeds to impeach them. But the land office proofs having shown that no such division had been made, I think their production destroyed the purchaser’s prima facie case, and put him to the necessity of showing a good assessment, and a redemption of such por
I do not know that any especial reliance is placed upon the presumption of title as well as of regularity mentioned in the statute. I do not imagine it would in any way strengthen the other presumptions if it appeared on the face of the deed that the proceedings were irregular, or if it appeared so otherwise. Regular proceedings would give title, and irregular ones could not. It is not a new provision entirely. Under the Revised Statutes of 1838, it was enacted that the Auditor’s deed should “be conclusive evidence of the title: Provided such assessment and all other proceedings in the premises were regular according to the provisions of this title.” R. S. 1838, p. 98. By changing this section and raising a prima facie presumption of regularity, the effect of the Statutes of 1838 would have been greater than that of our present statute. The occasion of the introduction of the phrase as it now
It seems to me that under the somewhat strict rules which are justly applied to all proceedings of this character, no presumption of regularity ,; can be made to reach any of the steps not directly connected with the regular
The earliest partial redemption permitted is when the roll is in the hands of the township treasurer. He is required to receive the taxes on a part of a lot which the tax payer will clearly define, and if the tax on the rest is not paid, he is to “enter a specification thereof in his return to the county treasurer.” — 1 Comp. L. §831. He is required to make in this return a full and perfect description of the premises from his tax roll; and it must be compared by the county treasurer with the original tax roll, and be found a “true transcript from the same:” §§833, 834. I do not see how this is complied with, unless the original description is given with a specification of the “clearly defined” part which is redeemed. A sale by such a description would leave open no door for mistake. Any other definition of the remainder would be, to say the least, extremely liable to error in any but perfect and square government subdivisions.
,. Whatever may have been the reason which induced the Legislature to require a particular kind of description for purposes of assessment, it seems to me the same occasion exists for preserving similar rules in regard to redemptions. And in 'eases of irregular parcels, it would often be unsafe for the state authorities to undertake to make a new description of a residuary portion without showing the amount originally assessed. In regard to undivided interests, it is necessary to show what interest is redeemed, and to whom it belongs, “that it may be excepted in case of the sale for the tax on the remainder:” §831. Where the deed does not show a redemption, and does not cover a full assessable description, I see no good reason for raising any presumptions concerning what, if true, is the act of a private person, and not within the discretion of any public officer, and in which the latter is merely an agent to receive money which may be lawfully tendered him by any one who chooses to redeem. The law which now requires some show of ownership in the redeemed tract, and that it is confined to the redeemed portion, was not in force when these transactions took place. The right to redeem was, before the statute of 1858, subject to no such condition:— L. 1858, p. 186. It was a private,
I think the court erred in not requiring proof of a valid assessment, after the description had been shown to be incorrect.
Judgment affirmed.