Hall v. Kellogg

| Mich. | Oct 22, 1867

Campbell, J.

Complainant filed his bill in the Allegan Circuit Court to set aside a claim of defendant to certain lands, which complainant alleged he owned in fee, and of which he was also in possession.

Complainant’s title consisted of a purchase from the estate of William Tyler, deceased, who had possessed and occupied the land for several years before his death, and also of a quit claim from defendant to his grantor of a tax title for 1858. The bill alleged defendant’s claim to be under a tax title for 1859, in which year the land was assessed to Tyler’s estate, and in due time sold and conveyed by the Auditor General as delinquent. This latter tax title is alleged to be invalid for several reasons, which will, so far as may be necessary, be referred to.

A preliminary objection, however, is urged against any decree, on the ground that complainant has made out no more than a presumptive title, and that the statute requiring in such cases that the title be established cannot be satisfied by anything short of an indefeasible title distinctly made out.

If a bill under the statute in question could be filed against all possible parties, so as to make the decree operate as a decree in rem, to quiet the title against all the world, there would be great force in this objection, and it would be necessary to decide what amount of proof would suffice to shut out any adverse presumptions or possibilities. But we have already decided in Hunton v. Platt, 11 Mich. 264, that a bill seeking to bring in defendants having distinct and disconnected adverse claims would be multifarious. No claim can be litigated by complainant in this cause, except such as may be asserted by the defendant. The decree cannot be binding against strangers to the titles and parties in this-suit. . We can see, therefore, no reason for requiring of complainant any proof of title beyond that which, when making out a presumptive case against the defendant, has not been met by any proofs adequate to shake or destroy it.

The title made out here is good until rebutted. Tyler is shown to have occupied the land for several years, and to have died in possession. Complainant, as purchaser from the estate, is entitled to all the rights which would belong to an heir or devisee. Proof of the seisin of the decedent is prima facie evidence of his title in fee.— Buller’s N. P. 103; Adams Eq. 281; Day v. Alverson, 9 Wend. 223. And in the present case defendant’s tax title is deduced under an assessment laid against the premises as resident lands belonging to Tyler’s estate. We think that the title thus shown is sufficient, until proof is introduced tending to invalidate it. Complainant has, further, such aid as is derivable from the tax deed for 1858, which, however, it is not necessary to consider, as the title of defendant, if invalid, does not destroy complainant’s rights, but, if regular, supplants them all.

The deed of 1859 is alleged to be vitiated by several illegalities in the assessment and subsequent proceedings to levy the taxes, most of which are sought to be proved by the omission of the certificates and records required by law to sustain them. It appears, among other things, from the certificates and evidence of the proper officers, that these papers are not, in some instances, to be found in their offices, and that no knowledge is possessed of their existence at any time.

Thé law presumes that all officers entrusted with the custody of public files and records, will perform their oficial duty by keeping them safely in their offices. Where a paper is not found where, if in existence, it ought to be deposited or recorded, the presumption therefore arises that no such document has ever been in existence.— Platt v. Stewart, 10 Mich. 260. Until this presumption is rebutted, it must stand as proof of such non-existence.

We do not deem it necessary to refer at large to all the defects relied on. There appears, among other things, a tax raised for the benefit of the county agricultural society, which could only be ordered when the Supervisors had been informed, by the sworn certificate of the president and secretary of the society, that $100 at least had been raised by the society.— Comp. L. § 1687. No such certificate can be found, and no evidence is given tending to show its existence. The proofs show conclusively that this money for the agricultural society was-included in the sum ordered to be levied by the Supervisors, and being illegal it vitiates the sale.

Without referring to the other questions presented, we think this defect avoids the deed. A similar defect exists in the complainant’s tax deed for 1858, but as his title is good, independent of that, the failure is not material.

The decree below was correct in granting the relief prayed for, and must be affirmed, with costs.

CHRiSTiANCY'and Cooley JJ. concurred. Martin, Oh. J. did not sit.