119 Mich. 101 | Mich. | 1898
Lead Opinion
In 1893 Francis Lord was the owner of the 40 acres of land involved in this controversy, and of an adjoining 20 acres of land. In February, 1892, Mr. Lord and his wife gave to Laura Berkey a mortgage upon the entire 60 acres of land for $1,800. In the spring of 1893 the land was assessed to Mr. Lord. The assessment upon the 40 acres was $1,300, and upon the 20-acre parcel $400. No mortgage interest was assessed against Mrs. Berkey. Mr. Lord paid the taxes upon the 20 acres. The 40 acres was returned for nonpayment of taxes. After petition filed by the auditor general and an order made by the circuit judge, notice of which was duly published and proof thereof filed, a decree was made for the sale of the 40 acres of land. December 2, 1895, it was sold, and bid off by the State. . It was not redeemed, and on December 4, 1896, at the regular tax sales, it was purchased by John Macfie, who on March 25, 189?, obtained a deed of the land from the auditor general. In July, 18*9?, Macfie conveyed his interest to George W. Burchard, Jr.
In August, 1897, Laura Berkey filed a petition for leave to file a bill of review in the original tax proceeding. This petition was accompanied by a draft of the proposed bill of review, in which it was stated, among other things, that prior to the tax decree the taxes upon the land in controversy had been paid. The circuit judge granted leave to file the bill of review, and a hearing was had before him. Upon the hearing the complainant sought to show that her mortgage interest had not been assessed, and that she had no notice of the tax proceedings until Mr. Macfie obtained his deed. Testimony was also given tending to show that the taxes had been paid; also, that Mr. Lord had personal property out of which the tax might' have, been collected, and that the return of the town treasurer was not true. Other irregularities were sought to be shown. The circuit judge decided that Mrs. Berkey had failed to show such a state of facts as entitled her to relief, and dismissed her bill of complaint and the cross-bill of Mr. Lord, and granted Mr. Burchard the
The circuit judge found that the petition was filed by the auditor general, with the list of lands attached thereto; that an order of the circuit judge was duly made and signed fixing the time and place of hearing; that notice of the time and place of hearing was duly given as required by law; that the proceedings prior to the tax decree were regular; and that all the intervening steps to the giving of the deed were regular. The record also discloses that the sale was duly confirmed, and all the proceedings enrolled, before the petition for leave to file the bill of review was filed. There is nothing in the record to show that the circuit judge was not right in so finding.
Section 70 of the. tax law provides, “No sale shall be set aside-after confirmation, except in cases where the taxes were paid or the property was exempt from .taxation.” Act No. 206, Pub. Acts 1893. In this case the petition and bill of review alleged that the taxes had been paid, and because of this allegation it was the duty of the circuit judge to entertain the bill. He allowed testimony upon other issues than the payment of the taxes to be given, and made findings in relation to those issues. But we do not deem it necessary, to discuss them here. The circuit judge found that the allegation in the bill that the taxes had been paid was not sustained by the evidence. The testimony upon that point was contradictory, but we think it was of such a character as to fully justify the circuit judge in his finding, and especially as the witnesses were examined in open court. We are not inclined to disturb his finding in that respect.
It is urged by counsel that a bill of review in a tax proceeding will perform the same office it would in any chancery case. We think a chancery judge would not be
In this case a writ of assistance was issued to the defendant Macfie. It is suggested in the brief of counsel that the affidavit filed as the basis for the issuance of the writ does not show that, at the time of the purchase of this
The decree is affirmed.
Rehearing
ON APPLICATION EOR REHEARING.
This is an application for a rehearing of the case reported at page 101, ante. After this case was commenced, but before it was decided, the opinion in Hughes v. Jordan, 118 Mich. 27, was handed down. The purpose of this application is to have the case remanded, so it may be shown that Macfie, through whom Mr. Burchard obtained his title, did not pay the taxes then a lien upon the land when he obtained his deed, so as to bring the case within Hughes v. Jordan.
The petition which is the basis of the motion shows that Macfie did not buy the land at the office of the auditor general, at private sale, as section 84, Act No. 206, Pub. Acts 1893, provides may be done, but he bid it off at a public sale made by the county treasurer under the provisions of section 79 of said law. Sections 80, 81, and 82 provide what shall be done by the purchaser, the county treasurer, and the auditor general, under such circumstances. In none of these sections is it required that, before the purchaser at a public sale made by the county treasurer shall be entitled to his deed, he shall be required to pay all taxes then a lien on the land. Section 84 requires the payment of all taxes then a lien upon the land, where the purchase is made at private sale at the office of the auditor general. Its provisions and the case of Hughes v. Jordan, supra, do not apply to this case.
The application for a rehearing is denied.