King v. Harrington

| Mich. | Apr 20, 1869

Ohristiancy J.

This was an action of ejectment. The plaintiff in error, who was also plaintiff below, deduced a perfect title from the United States.

The defendants, having pleaded the general issue, and filed a claim for compensation for improvements under sections 4603 to 4606 of compiled laws, undertook, on.the trial, to defeat the plaintiff’s title by proving title in himself: 1st, under a deed made on a sale under an execution issued on a judgment in an attachment suit against the plaintiff, the proceedings in which he introduced in evidence; 2ndly, under certain deeds from the Auditor General for delinquent taxes. He also showed that he went into possession, claiming title from both these sources (the deed on- the execution sale and the tax deeds), and that, in reliance upon both, he had made large improvements on the land, and had remained in possession, relying upon all the deeds, for more than six 3rears before the commencement of the action.

Both the deed from the sheriff and those made under the tax sale, having, on the trial, been shown by the plaintiff to be invalid; the question arose whether the defendant, under these circumstances, was entitled to compensation for his improvements. The Circuit Court held that he was; and this is the question for our decision.

It is insisted, on the part of the defendant, that though he claimed under, and relied upon, both species of title, he did not the less claim under each; and that, though he claimed title under the sheriff’s deed, it is hone the less true that he “ claimed title by virtue of a sale made by the Auditor General for taxes,” and that this brings him within the words and intention of the statute, as clearly as if he had claimed title on the latter ground only.

This argument at first view seems plausible, as it appears to bring the defendant within the letter of the statute; and I confess I was at first disposed to doubt whether it did not also bring him within its intention. But on reflection, I am disposed to agree with my brethren, that the legislature having given this privilege to the defendant in ejectment in certain specified cases only, have by this specification just as clearly shown their intention to exclude every other class of cases from the operation of the statute, as if they had expressly so declared; and having therefore (as applied to this case) given the right only to a defendant claiming title by virtue of a sale made for taxes, the legislature must be supposed to have intended to exclude cases where the defendant claims title in any other way, and to have intended to confine the privilege to cases where the possession has been held and the improvements made in reliance solely upon the tax sale and deed, or at least upon this and some of the other modes specified in the statute.

We therefore think the defendant was not entitled to compensation for improvements under this provision of the statute; though he might still, by way of set off, obtain compensation to some extent for improvements under section 4602, if the plaintiffs should proceed for the recovery of mesne profits. The judgment of the Circuit Court, in so far as it relates to compensation to the defendant for improvements, must be reversed, with costs, and so far as it is in favor of tire plaintiff for the recovery of the lands, it must be affirmed. This being ejectment, the record should be remitted to the court below, as the defendant may (if this was the first trial) be entitled to a new trial under the statute.

The other Justices concurred.