148 Mich. 583 | Mich. | 1907
Lead Opinion
This is an action of ejectment. Plaintiff’s title is derived from a deed executed under the State tax homestead law. This deed was prima facie evidence of title (Act No. 211, Pub. Acts 1905), and there was no evidence of any irregularity in the proceedings leading to its execution. Defendant Kennedy was the former owner of the land. The other two defendants were tenants of defendant Kennedy. These tenants occupied the land at the time the auditor general and the commissioner of the State land office determined that it was homestead land. Verdict and judgment passed for plaintiff. We are asked to reverse that judgment
Appellants in their brief argue several questions not presented in the record. Such questions we cannot consider. Under the practice prevailing in this court, we reverse judgments of the circuit court only for the errors shown by the record and complained of in appellant’s brief. In other words, the question of law upon which appellant relies must be presented in the record and argued in his brief. Under this rule, there is but one question in this case for our consideration, and that arises from the contention of defendants that section 127 of the general tax law (Act No. 206, Pub. Acts 1893, as amended by Act No. 107, Pub. Acts 1899), is unconstitutional. That section makes it the duty of the auditor general and commissioner of the State land office to determine when State tax lands shall become State tax homestead lands. Such
In reaching the foregoing conclusion, we have considered and denied the proposition that the title of the State which would otherwise be absolute (see Connecticut Mut. Life-Ins. Co. v. Wood, 115 Mich. 444; Hickey v. Rutledge, 136 Mich. 128) is lessened or impaired by Act No. 229 of the Public Acts of 1897. This act, which is superseded by Act No. 236 of the Public Acts of 1903, gave owners the right of redemption when the State sells State tax lands under the general tax laws. It has been
Said section 127 provides that the determination heretofore mentioned shall be conclusive unless it is assailed by suit within six months. As applied to this case, this provision required the defendant in possession to commence suit against an adverse title. This circumstance does not, in my judgment, render the provision unconstitutional under the principle recognized and applied in O’Connor v. Carpenter, 144 Mich. 240. That principle is this:
“One who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another for failure to bring suit against that other within a time specified to test the validity of the claim which the latter asserts, but takes no steps to enforce.” Cooley on Constitutional Limitations (6th Ed.), p. 449.
That principle preserves the rights of the one in possession. 'It applies only where he has rights. In this case defendant in possession had no rights, and therefore the principle has no application. A contrary holding would, in my judgment, require us to say that Semer v. Auditor General, 133 Mich. 569, and Jackson, etc., R. Co. v. Lumber Co., 146 Mich. 204, were erroneously decided. It is true, as pointed out by Justice Ostrander, that under our tax law the former owner in possession of State
I think the judgment should be affirmed.
Concurrence Opinion
I concur fully in the opinion of my Brother Carpenter. In view of the opinion of my Brother Ostrander, I desire to refer more fully to the facts in this case than is done in their opinions.
Plaintiff made his case by introducing the deed, dated December 12, 1904, from the commissioner of the State land office to the plaintiff. This deed is prima facie evidence of title, and of the regularity of the proceedings by which title was acquired. It was admitted that defendants Ruhstorfer were in the actual possession of the property at the time the suit was commenced. Plaintiff then rested. Defendant then introduced the deed from the auditor general of the State to the State of Michigan, dated September 2Í, 1904, conveying the land therein described to the State, under section 127, Act No. 206, Pub. Acts 1893, as amended by Act No. 107, Pub. Acts 1899. That deed recited the examination and determination of the auditor general and the commissioner of the State land office, as provided in section 127 of Act No. 206, Pub. Acts 1893, as amended by Act No. 107, Pub. Acts 1899, and the filing of a certificate by the examiner that the lands were abandoned. It was admitted by the parties that the record title stood in defendant Kennedy, subject to the tax liens and tax proceedings, and had been in him for a number of years prior to these proceedings. A witness for the defendants testified that he (the witness) had been in charge of the property, had collected rent
It was the duty of defendant Kennedy to show that the title was void. No such showing or attempt to show is shown upon this record. As shown by the deed from the auditor general to the State, defendant Kennedy had neglected to pay his taxes for 18 years, from 1882 to 1903. No excuse is offered for not paying the taxes, or for failing to appear in the numerous chancery proceedings., brought by the auditor general to foreclose the tax lien, and to contest the validity of the taxes if he had any objection thereto. In deciding this case, therefore, we must hold that all the proceedings were regular, and that the State obtained title to the lands. I am unwilling to cast any doubt upon the many decisions of this court holding that the State acquires the absolute title to these tax lands. The original owner, after decree and sale, may in a proper proceeding attack the title for certain reasons. When the title is in the State, the original owner has no more interest in it than any stranger to that title. He may purchase the land from the State as may any other person.
The design and object of proceedings in chancery are to give the landowner his day in court to test the validity of the tax proceedings. He is a party to that litigation. He knows that his lands are subject to taxes, that he has not paid them, and that proceedings will be taken to foreclose the tax lien. His property is advertised in the public notice required to be given. It does not lie in his mouth, under these circumstances, to say that he has had no opportunity or day in court to test the validity of the taxes assessed against him, or of the regularity of the proceedings by which the State has acquired title to his land. Act No. 229, Pub. Acts 1897, did not change the validity
“Any person owning any right, title or interest in said lands shall at any time after the date of issue of tax deeds thereon, and before service of notice as herein provided, be entitled to redeem the land from sale by paying to the register in chancery of the county in which the lands lie, on the certificate of the auditor general or his deputy, all sums paid as a condition of such purchase, together with one hundred per cent, additional thereto, and the further sum of five dollars for each description. By such payment the tax title shall become void and of no effect against the lands thus redeemed. The register in chancery shall, whenever payment is made to him as provided in this section, at once notify the owner of the tax title of the payment so made, and the owner of the tax title shall forthwith deliver a quitclaim deed of said land running to the person making such payment, and shall also deliver to said register the tax deed, certificates of purchase, tax .receipts and all other conveyances relating to said tax title before he shall be entitled to receive the money paid to said register as herein provided. Upon delivery of such reconveyance the register in chancery shall at once pay over to the owner of the tax title all sums received by him for redemption of the lands therein described.”
In construing what the words “redeem ” and “redemption ” mean in this statute, the entire statute must be considered. To my mind the conclusion is irresistible that
Dissenting Opinion
(dissenting). This court has used the words “absolute title” in describing the interest acquired by the State in lands sold for taxes after the statute period of redemption had expired. The opinions in which the words appear to have been given the largest meaning are, it seems to me, Allen v. Cowley, 128 Mich. 530, Hickey v. Rutledge, 136 Mich. 128, and Blake v. Grondin, 141 Mich. 104. There may be other cases in which the extent of the interest so acquired by the State is expressed otherwise than by the somewhat general formula “absolute title.” It is apparent that, if the tax law is to be construed and applied according to a notion that the interest of the landowner is completely divested when his land is sold and he has failed to redeem it, conclusions will be
Due process of law to deprive one of land means, I take it, something more than a legislative declaration that the title to land has been acquired by the State, when such declaration is coupled with the further one that, before the title so acquired- can draw to it any interest in the land which is beneficial, it must be offered to the land
If I am right in concluding that the owner of the original title has still an undivested interest in such lands, at least to the point of his abandonment of the lands, he is interested in the proceedings instituted for the purpose of connecting the beneficial interest in the land with the title acquired from the State — proceedings to divest him of his remaining interest, whatever it is. As the right of the State to treat the land as abandoned depends upon the ascertainment and declaration of a fact, the owner against whose interest the fact may be found ought not to be concluded without opportunity to be heard. Upon the trial of the instant case, plaintiff introduced in evidence a deed from the commissioner of the State land office, dated December 12, 1904, conveying the land. Defendant introduced a deed of the same land from the auditor general to the State under the provisions of section 12?, Act No. 206, Pub. Acts 1893, as amended by Act No. 10?, Pub. Acts 1899, dated September 21, 1904, and testimony undisputed to prove that by tenant defendants were in actual occupancy of the land from March 1, 1904, to the time of the trial. The land was not therefore abandoned land at the time the auditor general and commissioner of the State land office determined that it was abandoned, if the statute duty of those officers was performed, as we assume that it was. The deed from the commissioner to the plaintiff is prima facie evidence of title. Act No. 211, Pub. Acts 1905. This evidence was met, in my opinion, by the proof of actual occupancy of the land for more than six months before the deed was executed. Plainly, the statute does not mean that the owner in possession shall be dispossessed or be put in a position where he may be dispossessed by a false determination of the fact of occupancy. It is provided, however, that the determination, right or wrong, shall conclude him, unless he attacks it within six.months after it is made. Section 12? of the tax law, considered as a statute of limitations, is invalid
The judgment should be reversed, and a new trial granted.