Lacey v. Davis & McFarren

| Mich. | Jan 15, 1856

By the Court,

Martin, J".

The plaintiff’s evidence of title Was properly admitted. In case of loss of an original patent, a copy from the records of the General Land Office of the United States, certified by the Commissioner, under the seal of.the office to be a true and literal exemplification of the Patent Records, as in this case, is admissible without further proo£ The provisions of Chapter 102 of our Revised Statutes, respecting evidence, have no relation to such cases, as they are governed by the laws of the United States, and the practice of the different departments.

The deeds subsequently offered, and through which the plaintiff deduces his title, were properly executed so as to entitle them to record. This was expressly adjudged by this Court in Ives vs. Kimball (1 Mich. R., 308), when the validity of a record of a deed, executed under the law of 1827 (the same under which the deeds in question were executed), was under consideration, and the record was admitted to be read in evidence. The records being admissible, the originals were also, without preliminary proof. Such proof was, however, made in this case, by proving the handwriting of the subscribing witnesses, and of the grantors, after showing that they were non-residents of this State at the time of their execution, and this was prima facie sufficient.

To maintain the defence, certain deeds, executed by the Auditor General upon sales of the lands in question for delinquent taxes, were offered in evidence. To the admission of these deeds, numerous objections are made. The first deed in order of time was to Luther C. Smith, dated in January, 1844, for the taxes of 1839. To the reading of this deed, as well as to its validity, several objections were made, but as the Court below found that the assessment roll, upon which the tax was based, was not signed by the Assessors, and as this is a fatal error under the ruling in Sibley vs. Smith (2 Mich., 486), we do not regard it necessary to consider them further, and especially, as every material objection to its validity is raised in the objection to the subsequent deeds.

Under this deed, it appears that Smith entered into possession of the premises in question in March, 1844, made some improvements thereon, and conveyed the same to John Ray-nor by deed, May 10,1844; and that at the time of such conveyance, Smith surrendered the possession to Raynor, and that the defendants have since held possession under him. Subsequent to this conveyance from Smith to Raynor, it appears that Raynor bid in this land for the taxes of 1842, at a sale made in October, 1844, and received his deed, therefore, in 1847. This deed was offered in evidence, and several objections made thereto by the plaintiff. Among other grounds of objection, it is insisted that it conveyed no title, as Raynor was in possession under color of title taken under the deed of January, 1844, and was bound to pay all taxes which were a lien upon the land at the time of taking such possession, as well as all burdens which might subsequently accrue. At the time' of the entry by Smith, the tax of 1842 was a lien upon the land, and it so remained until after the purchase by Raynor. By entering into the possession, Ray-nor acquired an absolute title as against Smith, and as against all the world except the present plaintiff; and whether as against him, would depend upon the validity o£ Smith’s title, and this, as he entered under it, he is estopped from questioning. Were he to deny the validity of the title of Smith, he would admit himself to be a trespasser upon tbe plaintiff; and while such, he could acquire no title adverse to the plaintiff by discharging any burden which the State imposes upon the land, or upon the owner, in virtue of its pre-eminent sovereignty, for this would permit him to take advantage of his own wrong; and, if his possession is adverse to the plaintiff, and under color of title, every act oí his which is in obedience to a law imposing such burden upon the land, must be regarded as done by him, by reason of his own claim of title, and in protection thereof; and he cannot thereby acquire a new or superior title, as every such act is deemed to be subordinate to his own title, and cannot be adverse to it. Thus, in Douglass vs. Dangerfield (10 Ohio, 152), it was held, that one in possession of lands claiming title, and in whose name it is listed for taxation, acquires no additional interest by suffering the land to be sold for taxes, and purchasing the same himself. The same doctrine is held in Ballance vs. Forsyth (13 Howard’s U. S. R. 18); Chambers vs. Wilson (2 Watt's R., 495); Veris vs. Thomas (12 Ill., 442), and Glancey vs. Elliott (14 Ib., 456). It is also recognized in Blakely vs. Bestor (13 Ill. R., 708), where it was held, that upon proof of the mere fact of posses, sion, by the defendant, at the time of the assessment and sale, the Court would not presume him bound to pay the taxes, because, says the Court: “He may occupy them as a tenant, under an agreement that his landlord shall pay the taxes, and in such case there could be no obligation on the tenant to pay them, particularly if) in pursuance of the agreement, they were listed for taxation in the landlord’s name.” But, upon the introduction of the tax deed by the defendant, “ It would be competent,” the Court says, “ for the plaintiff to avoid it by proving that the defendant occupied a position while it was maturing which made it his duty to have paid the taxes, and which forbid his taking advantage of a title acquired through his default.” So a purchaser, at a tax sale of lands in which he has an interest as heir, acquires no additional title. - See Cholean vs. Jones (11 Ill., 300); Platt vs. St. Clair’s heirs (6 Ohio, 93). In Douglass vs. Dangerfield, and in some of the other cases above cited, the land appears to have been listed for taxation In the name of the occupant claiming title, but we appre. hend that no material difference exists between such a case and one in which it was listed or assessed as “ non-resident,” or to a person having no title, or claim of title. The listing is based upon the fact of possession under a claim of title, and it is the possession which creates the disability in the purchaser. Were the Assessor to omit, for any reason, to assess the land against such possessor, or to assess it to a wrong person, we are at a loss to perceive upon what principle such possessor, any more than the owner under any other title, would, by that omission, acquire any additional, or new interest, by suffering the land to be sold for taxes, and bidding it in himself. The principle upon which these decisions rest, grows out of the nature of the proceedings under which the sales for taxes are made. The State, for the support of Government, in the exercise of its eminent domain, imposes the burden of taxation upon all persons and property within its limits. If such taxes are not paid, and real estate be the subject of taxation, it condemns the land for the default, and this condemnation is wrought out by its sale. The title acquired by such sale has nothing to do with the previous chain of title, nor does it in any manner connect itself with it. It is a breaking up, of all titles, and operates, not to support, but to destroy them. See 20 Ohio, 556(.

It would, therefore, involve an absurdity to say that a subsequent title acquired at a tax sale, and which breaks up and destroys all prior titles, operates at the same time to strengthen such prior title. Nor does the fact that the tax title of 1812 was a lien upon the land, at the time possession was taken by ¡[ Smith, enable the defendants to avail themselves of the sale for that tax. ■ The land was purchased for the tax of 1839, with this burden upon it, and by entering into possession under that sale, Smith, and afterwards Raynor, was bound, in virtue of such possession, to discharge the lien for the protection of the title under which he occupied. By a voluntary payment he would not strengthen his title, and by suffering the land to be condemned and sold to discharge such lien, he could, as we have seen, neither strengthen it, nor acquire a new one. The law neither puts, nor does it intend to put the possessor of lands claiming under a tax title in any better condition than that of a possessor under any other title; and it is only by the purchasing in of those adverse or outstanding, that the latter can strengthen his original title, and this can never be done by removing liens or incumbrances which are founded only upon duty, or in contract. Possession is voluntary, and when the purchaser has such confidence in the validity of his title that he is willing to enter upon and enjoy the possession and pernancy of the profits, then, if not before, the obligation to discharge the burdens which the law has imposed upon the property for the support of Government attaches to him, and whether those burdens already exist as liens, or are thereafter created, his duty is the same. This is an obligation incident to every title and to every possession under color of title. A party, therefore, who enters upon the possession of land under one, or a series of tax titles, should see to it that he has such a title as will warrant him in incurring the liabilities incident to that possession. In imposing this rule, the law only applies in his case the obligation which is incumbent upon every other purchaser of land, to take care that he has a good title if he would derive benefit from it, or enjoyment under it.

Having arrived at this conclusion, we should deem it a duty, under ordinary circumstances, to pass by the objections stated to the assessment and tax for the years of 1842 and 1844. But as many of the questions are of great practical importance, and of frequent recurrence at the circuit, we do not feel at liberty so to do. And first, it is objected to the deed for the tax of 1842, that the sale did not take place on the day fixed by law, and no reason therefore appears. It appears that the land was sold on the 11th day of October, 1844. By the Act of 1843, which governed this sale, it was to commence on the first Monday in October, and to be continued from day to day until so much of each parcel charged With taxes should be sold as should be sufficient to pay the taxes, interest, and charges. (See Séss. L. of 1843, 79 and 88, §§ 61 and 76.) No evidence appears of this fact, except the recital in the Auditor General’s deed. Under the ruling of this Court, in Sibley vs. Smith, this would not be evidence sufficient to invalidate the sale, nor shift the burden of proof upon the defendants. For aught that appears, the return of the County Treasurer to the Auditor General may have .shown a compliance with the statute, and it was for the plaintiff to show that it did not.

There is nothing in the second objection, as the finding of the Court below shows a sufficient compliance with the law, and record of the township vote.

It is thirdly objected, that the assessment roll was not signed. It appears, however, that the certificate of the Assessors required by the law of 1842, was attached and signed. The law of 1842, page 85, unlike the Revised Statutes of 1838, does not require such signature to the roll, and in this respect this case is distinguishable from that of Sibley vs. Smith, and the adjudications in other States, to which we are referred in the plaintiff’s brief. We do not, therefore, regard the want of signature as an objection, the certificate being the only authentication of the roll required by law.

It is fourthly objected, that there was no equalization of the assessment rolls by the Board of Supervisors, or apportionment of taxes by them, entered at large upon the journal of the board.

X The ninth section of the act of 1842 requires an equalization of the rolls to be made at the July session in each year, whenever the board shall deem the relative valuation of the real estate in the respective townships to be disproportionate, and the presumption of law, in the absence of a record of equalization, is that none was made, because no cause was found to exist requiring it.

The apportionment of taxes is required by the Act (Section 14) to be made and entered upon the journal of the board at its September session ; and as the records of that session were not produced by the plaintiff, nor any evidence offered respecting them, we can infer nothing against the validity of the tax under this objection; nor was the burden of showing the entry to have been made cast upon the defendants, by the proof offered.

The same remarks are applicable to the fifth objection. The proceedings of the board at its'July session, however irregular, will not warrant any presumption respecting their proceedings at the September session, or change in any degree the burden of proof

It is sixthly objected, that the record of the July session is defective and void, in not showing who constituted the board, or that a quorum was present, and for want of signature or authentication by the clerk or presiding officer of the board. So much of the record as is exhibited in the case, shows that the Board of Supervisors met on the 29th of July, and proceeded to business. The inference is that all the Supervisors of the county were present, or at least a quorum. If the contrary was the fact, it should have been affirmatively shown. Nor do we regard the signature of the President or clerk necessary to the validity of the record. The law requires one to be kept, but does not require it to be signed by any one. "While it is proper and desirable that these records should be signed, yet we do not regard the omission as a fatal error, but at most, only an irregularity. If, as we must presume, the plaintiff found the records in the proper place of their custody, his production of them estops his denying them to be the records of the board. He can hardly be. permitted to base his objections upon the records, and still deny such records. Even the want of a signature of the Presiding Judge to the journal of a Court, although required by law, does not vitiate the record (see Bartlett vs. Lacy, 2 Ala. 161), if sufficient in other respects, and in case of the records and journals of public bodies, the only prerequisite to their admissibility as evidence, is that they be produced from the proper place of custody, and shown to have been kept by the proper officer.

The seventh objection is, that the amount for which the land was sold was excessive, and the sale was, therefore, void. The tax was $18.82. By the requirements of law ten per cent. was to be added to all taxes remaining unpaid on the first of February. This addition of ten per cent, is objected to as excessive ; but as it was imposed by virtue of the statute, we perceive no force in the objection..

Most of the objections to the tax of the year 1844 are the same as those made to that of 1842, and have been already considered. Two objections, however, remain as to this tax,

JLvrst: It is objected that the records of the Board of Supervisors show the equalization of the assessed property to be irregular, inasmuch as it includes the real and personal property together; but the case does not show sufficient to enable us to determine the question raised by it.

The only other objection which we propose to consider is, that the township tax of $90.64 was wholly unauthorized, none having been voted by the electors, or by the Town Board. The authority to levy a township tax is based upon the previous action of the township — either the electors, or the Town Board, as the case may be — and the Supervisor cannot levy a tax at his discretion. In this case the Court below finds a total absence of such authority, and that > portion of the tax is therefore void. This doctrine of excess of taxes has been frequently before the Courts, and is surrounded by many difficulties. There is no principle, however, upon which this, excess can be sustained. In personal actions against the Collector and others for collecting, or attempting to collect snch tax, Courts have held that when the tax was divisible, and the excess could be ascertained, such excess might be rejected, and the balance of the tax held good; but that principle has no application to cases of ejectment, where the validity of the title depends upon the validity of the tax and subsequent proceedings, and where, from the very nature of things, there can be no separation of the good from the bad. It is only applicable in personal actions or in direct proceedings to collect the tax, and does not operate upon property acquired upon tax sale. (See the numerous cases cited in the notes to Oh. VI., of Blaclmell on Tax Titles, p. 184, et sep)

In testing the validity of tax titles, we are too apt to lose sight of the fact, that by malting the deed prima facie evidence of the regularity of all proceedings to its date, our law has shifted the bqfden of proof from the holder of the title to the adverse patty. The holder of the title, instead of being compelled to establish the regularity of all proceedings upon which his title is based, may repose upon his deed until the opposite party introduces such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming the proceedings anterior to the deed to be irregular and insufficient to sustain the title. "When this is shown the burden of proof is thrown upon the holder of the title, and the common law rule so far restored. (See Sibley vs. Smith, above cited.)

The great difficulty is to determine when that burden is shifted, and this must in a great degree depend upon the circumstances of individual cases. In the present case we have considered and determined the objections raised, upon the principle that the evidence sufficient to change the burden of proof must be such as to exclude any reasonable-presumption of regularity ~ ill other words, that the evidence of irregularity must be such as to require explanation, or counter proof, and must be of matters which are peremptory and not directory, and that it is not sufficient to cast a general doubt over the title, but that it is necessary to point out some specific defect, or raise a reasonable presumption against the sufficiency of some particular act, or of the non-performance of some necessary duty. It is in this way only that we can secure to the statute a rational interpretation and reasonable effect.

Certified accordingly.

Present, all the Judges.