In re Wiley, 89 Mich. 58

In re Wiley

89 Mich. 58 | Mich. | 1891

Long, J.

The petitioner is the owner of 40 acres of land in Elmwood township, Tuscola county, of the assessed valuation of $200, and against which a tax was assessed for a township drain in the year 1887. The other'taxes were paid, and the land was returned delinquent as to this drain tax.

The petitioner was not the owner of the land at the time the tax was assessed, and did not become so until after it was returned to the Auditor General for this delinquent drain tax. Russell- A. Clark was the owner of the land at the time the tax was assessed, and thereafter deeded the same to one Corey, who deeded to Wiley, the petitioner, who placed his deed on record prior to-the time of filing the petition by the Auditor General, upon which the decree was made, and which is now-sought to be set aside.

The Auditor General filed his petition in the circuit, court in chancery for Tuscola county in the form required; *60by the tax law of 1889. Upon the filing of this petition a subpoena was issued by the register of that court, directed to be served on Kussell A. Clark. No protest was filed against the alleged lien by any person. Upon the fil.ng of the petition, the Auditor General caused a ■copy thereof to be published, as required by section 54 of the tax law of 1889. At the February term, 1890, a default decree was entered against the land for the full amount claimed. As returned, the amount of the tax was $81.45. To this was added interest, $21.18; expenses of sale and collection fees, $4 26; expense of personal service of subpoena, $.45; and fees to the county clerk, $.82; making in all, $108.16. In May, 1890, the land was offered at the tax sale. No one bidding- therefor, the State became the purchaser for the $108.16. At the time the petition in this case was filed, the State claimed $121.17.

Mr. Wiley claims to have first heard of this sale in March, 1891, when he filed his petition in the circuit court for the county of Tuscola, in chancery, asking to have the decree set aside, and that he have opportunity to appear and defend against the tax; and alleging that the whole tax was void, by reason of certain irregularities in its assessment. This petition came on to be heard before that court on May 18, 1891, when the petition was dismissed.

The only question which we need discuss is whether, under these circumstances, the circuit court for the county of Tuscola, in chancery, acquired jurisdiction over this land to enter a decree ordering its sale by reason of the publication of the Auditor GeneraFs petiFon, though no personal service of subpoena was made upon Mr. Wiley, the petitioner, he being a resident of the State. Section 53 of the tax law of 1889 provides that,—

“After the filing of said petition, the county clerk, *61acting as a register , in chancery, shall issue a subpoena directed to each delinquent tax-payer who is a resident of this State to appear and answer said petition within twenty days after the return day of said subpcena, or, in default thereof, said petition will be taken as confessed by such delinquent tax-payer.”

This' section further provides that such subpcena shall be personally served upon such delinquent tax-payer, if he can be found within this State, in the same manner as subpoenas in chancery are served. It also provides for the service of the subpoena in any county in" the State, and provides for the payment of fe,es to officers for making such service. The section then provides as follows:

“If any delinquent tax-payer who has been personally served with subpoena shall not appear to defend against the said petition within the time in this section provided, the same shall be taken as confessed by him, and thereupon a decree may be entered against him, unless said confession shall, upon application to the court at a time before said decree is taken, be set aside. Such decree may be taken either in term-time or at chambers.”

Section 54 of the ‘act provides for the publication of the Auditor General’s petition, and further provides:

“He shall also publish therewith, for a like time, a notice by him signed, stating therein in substance that the State of Michigan has filed such petition in the circuit court for such county, in chancery, referring to such copy; that it claims a decree against each parcel of land therein described for the amounts specified; that such petition will be brought on for a hearing and decree at the next term of such court, to be held at a time and place in such notice specified; that all persons interested in such lands, against whom a decree shall not have been taken, desiring to contest the lien claimed thereon for such taxes, or any part thereof, shall appear in said court, and file with the clerk thereof their objection thereto, on or before said day; and that, in default thereof, a decree will be taken as prayed for in such petition. In such notice he shall also state that on the first Monday of *62May next thereafter the lands described in said petition, and for which an order of sale shall be made, will be sold for the taxes, interest, and charges thereon as determined by such decree, at some convenient place in said county, to be named in said notice.”

The section then further provides:

“The publication of the notice aforesaid shall be equivalent to a personal service of notice on all persons not personally served, who are interested in the lands specified in such petition, of the filing thereof, of all proceedings thereon, and of the sale of the lands under the decree, and shall give the court jurisdiction to hear such petition, determine all questions arising thereon, and to decree a sale of such lands for the payment of all taxes, interest, and charges thereon. The circuit court in chancery shall have jurisdiction to hear, try, and determine the matters alleged in such petition, even though the amount involved therein be less than $100.”

The tax law of 1889, under which this proceeding is had, nowhere provides any compensation for the examination of the records in the office of the register of deeds to determine in whom the title of record of the lands returned delinquent for taxes stands, and against whom subpoenas upon the filing of the petition shall issue. It •does not provide any compensation to any person for making such searches. It simply provides that the register shall issue a subpoena directed to each delinquent tax-payer who is a resident of this State. The Legislature evidently intended that the subpoena should issue and be .served upon the person against whom the tax was .assessed, and whose name appeared upon the tax-roll for that year. It evidently was not the intention of the Legislature to make the jurisdiction of the court depend upon the service of the subpoena in that class of cases ■where the lands were not occupied and were assessed as non-resident, as there would be no means by which the register of the court could determine the real owner of ■the premises by any search which he might make in the *63■office of the register.of deeds, as it frequently happens that deeds are not recorded for months, and sometimes for years, after their execution and delivery. The use •of the words, “ delinquent tax-payer who is a resident of this State,” undoubtedly was intended to apply to persons against whom the tax was assessed, whose names appear upon the assessment roll.

This section (54) gives the court jurisdiction to enter .a decree against such persons, and makes the publication •of the notice equivalent to personal service.

The petitioner in this case was not a resident of 'Tuscola county at the time the Auditor General filed his petition, but claims to have been the owner of the land at that time; but he knew that his land was subject to taxation, and from the brief presented by his counsel it is apparent that he made some inquiry'in regard to the taxes, as the State, county, and other taxes were paid, aside from this drain tax. This not being paid, he had the right, upon the filing of the petition of the Auditor General, to appear and show, if he could, such irregularities in the assessment of the drain tax as would .authorize the court to set it aside. He must be presumed to have known the provisions of the tax law, and that application would be made to the court under it for a decree to sell the land for any delinquent tax of that year which might appear against it. The publication •of the petition and notice by the Auditor General was a ¡sufficient notification to him of the facts therein stated. Upon his failure to appear he was properly defaulted, .and the decree properly made for the sale of the land. The court below was not in error in dismissing the petition. That order will be affirmed, with costs.

The other Justices concurred.