Collins v. Rea

127 Mich. 273 | Mich. | 1901

Grant, J.

{after stating the facts). 1. Defendants have no title to the interest conveyed to Collins, unless they can maintain their tax deeds. They concede that the taxes for 1883 and 1884 were void, but they rely upon their tax deeds for the taxes of 1885 and 1886. In both of those years the board of supervisors voted a salary to the sheriff of the county, as well as to certain other officers. This rendered the taxes void. Hewitt v. White, 78 Mich. 117 (43 N. W. 1043).

2. The deed to Collins was in fact a mortgage. Without the timber, the security was comparatively worthless. The mortgagee could therefore maintain a suit in equity to enjoin the removal of the timber. Under the stipulation, bond, and consent order of the court, the funds realized from the sale of the timber were to be divided among the parties according to the interest of each. The defects now urged against the form of the bill were thereby waived.

3. It is also urged by counsel for defendants Rea and Besser that no authority was shown by the corporation to secure the debt of West, and that this act of the corporation is prima facie ultra vires, and therefore casts the burden upon the complainant to show the authority conferred. This question was not raised in the court below. Had it been raised at any time before decree was rendered, the court might have allowed the complainant to introduce testimony upon this point. Howeyer this may be, these defendants, Rea and Besser, are not in position to raise the question. They have no interest in this land, their tax titles having been held void. The corporation was made a party, and by its pro confesso confessed the authority in its officers to execute the mortgage deed. Neither the corporation nor its stockholders are here complaining. We are not, therefore, called upon to decide the question.

Decree is affirmed, with costs.

The other Justices concurred.