131 Mich. 481 | Mich. | 1902
(after stating the facts). 1. Two objections were made to the admission of the tax deeds in evidence: (1) That they were not evidence of good faith; and, (3) if they were admissible for that purpose, it was incumbent upon the defendant to introduce all the proceedings upon which such deeds were based.
In support of the first objection, counsel cite and rely upon Winchester v. Craig, 33 Mich. 205. The language used by Mr. Justice Marston at page 333, in which he says, “ It is a notorious fact that tax deeds are almost universally upon examination found to be invalid, on account of defects not appearing upon the face of the deed,” etc., was not necessary to the decision of the case. The proceedings prior to the issuing of the tax deed by the State were at that time entirely ex parte. Since that decision was rendered, new tax laws have been enacted, which provide for suits in chancery in the nature of foreclosure to -determine the validity of the tax proceedings. The courts pass upon their validity before sales are decreed. Every taxpayer is thus afforded an opportunity to be heard before his land is sold and deed issued, and has little cause
Neither do we think the second objection well taken. The statute makes tax deeds prima facie valid. The presumption, as already stated, is in favor of the validity of the chancery proceedings tahen, .prior to decree and sale. The burden was upon the plaintiff to show a fatal irregularity, if any existed. This he failed to do.
2. The next question relates to the measure of damages. Plaintiff now seeks to obtain the value of the timber at the railroad, without any deduction for the cost of cutting and removing it to the railroad. Upon the trial he requested the court to instruct the jury as follows:
‘ ‘ If you find that the defendant cut the timber thinking in good faith that he owned the timber through his tax titles, then the fair measure of damages would be the market value of the logs at the point where they were sold by the defendant, less the amount paid by Mr. Besser to put them on the track, with interest from the date they were placed on the railroad track until the present time. In determining the market value of the logs at the track, the amount for which the defendant sold the logs, of which the timber from the land in question formed a part, should be considered by you.”
This request was given, with the modification that they should deduct “what it was fairly worth, or what it would fairly cost,, to put the logs upon the track.” In closing his instructions the court said:
“"But, to sum it all up, you should give the plaintiff, if you find that the defendant, as I have instructed you, acted in good faith in this matter, under his tax titles, all that the timber was fairly worth on the stump on the land in question, together with such profit as he might have made in removing it to the place where it was landed, and then sold at the fair market value for tl|e logs at that-place.” ■ -
Plaintiff relies upon Grant v. Smith, 26 Mich. 201. The reasoning of that case is not easily reconcilable with Winchester v. Craig, supra, decided four years later. Three of the justices who decided Grant v. Smith also
Judgment affirmed.