120 Mich. 631 | Mich. | 1899
Mrs. Mann purchased a parcel of land from the State, the same having been bid in for the State for the taxes of 1891 and 1892. In due season she filed her petition for a writ of assistance. The defendant answered, alleging .title, and attacking the validity of the tax proceedings and decrees upon several grounds. The-circuit court denied the relief prayed, and the petitioner has appealed.
The answer raises the following points:
1. That the petitions of the auditor general were not filed, and therefore the court did not obtain jurisdiction of the tax proceedings. This applies to the taxes of Í 881 and 1892. The precise defect appears to be that the petition attached to the tax record, which seems to have been found in the county treasurer’s office, had no filing by the county clerk upon it.
2. That the order of publication was not published as required by law.
3. That no decree was made for the sale of the land in question for the tax of 1892.
4. That on October 21, 1895, the defendant applied at the county treasurer’s office for a statement of all taxes against the premises, that he might pay all taxes and charges against them, and was told the amount by a clerk in charge of the office; and that he then and there paid the * amount given him, and supposed he had paid all taxes and charges against the land.
5. That the premises were, during 1891 and 1892, in the care and possession of his brother, who had personal property from which' the taxes might have been collected had the land been assessed to him, as required by section 6, Act No. 200, Pub. Acts 1891; and respondent believed such taxes had been paid until he received notice of this proceeding.
6. That he had regularly paid all previous and subsequent taxes.
7. That the land was offered but once before it was struck off to the State, and there was no formal bid made for the State.
In support of the first point, counsel for the appellee asserts that, not only was there no filing upon the petitions, but there were no calendar entries in the cause, and the
The next defect pointed out by the answer is that in neither instance was there proper proof of publication of the order. Among the proper files in the clerk’s office, a paper was found entitled “ Affidavit of Publication.” It was signed by one Whiting, and stated that he was the principal clerk for printing and publication of the Weekly .Courier-Herald, a newspaper published and circulated in the county of Saginaw; that the notice of the sale of state tax lands thereto annexed had been published in said newspaper once in each week for four successive weeks
The further claim is made that the publication in a supplement was not such a publication in a newspaper as to comply with the law. Newspapers commonly consist of two or more unbound sheets, which are liable to get separated. The designation of one as supplement does not make it less a part of the newspaper. Had that word been omitted, this question would not be here. It strikes us as a most technical objection.
Defendant’s third proposition is that no decree was made for the sale of the land in controversy. It is claimed that the list as published for the 1892 tax did not sufficiently describe the premises. The figures and word “ 15 entire” were printed in a column headed “Block,” among descriptions in “Clark’s Addition to the Village of Chesaning.” We have no doubt of the sufficiency of this description.
It -is urged by counsel that the amounts adjudicated against the land were inserted, after the decree was signed, by a clerk in the treasurer’s office. No hint of this claim is found, either in the answer or the proof, and we have, therefore, no occasion to pass upon the question.
The fifth ground of defense is that the land should have been assessed to the defendant’s brother, who was in possession. The statute referred to in this connection (section 6, Act No. 200, Pub. Acts 1891) contemplates assessment to the owner where known, as in this case.
The next defect mentioned is that on neither occasion of the sale for taxes was the land offered a second time before it was struck off to the State, nor was there a formal bid made for the State. Counsel does not point us to proof that this was not offered a second time before being bid in by the State. But section 68 of the law of 1893 provides that “if, for any reason, the treasurer of any county shall fail to offer the lands lying therein and included in the decree for sale for delinquent taxes thereon, then so many of such lands so included in such decree as shall not be so
This covers all questions specifically raised by the answer except the fourth. A further point is made in the brief upon the petitioner’s deed. Such deed is in form a quitclaim, and it is said to be insufficient, upon the ground that “it is the universal rule * * * that, where the statute does not prescribe the form of the deed to be used in conveying lands to purchasers at tax sales, such a form of deed must be used as would, at the common law, have conveyed title.” Counsel cites in support of this proposition: 2 Blackw. Tax Titles (5th Ed.), §772; Black, Tax Titles, § 396; Waldron v. McComb, 1 Hill, 111. This question is. settled by the case of Dawson v. Peter, 119 Mich. 274, which is upon all fours with the present case upon this point.
The fourth claim contained in the answer relates to the alleged application of the defendant to the county treasurer to pay taxes and charges.. The evidence upon this subject is confined to the testimony of the defendant. He produced a tax receipt for the taxes of 1894, bearing date October 21, 1895, and his examination proceeded as follows:
“ Q. At the time you received this receipt, with what object or purpose did you go to the county treasurer’s office ?.
‘ ‘A. I went there to pay the taxes on that piece of property in town 9, or any taxes which might be against me in the county treasurer’s office.
“ Q. How about block 15 ?
“A. Well, I asked about that, and they gave me that tax there with it, and I asked if there was anything more against the block, and they said there was not.
“ Q. Did you ask for a statement of all the taxes against the block ?
“A. I asked for all the taxes against the block, and was there ready to pay all the taxes that was against me in the*638 county, if there was any other at the time when I was there. They said there was no more taxes against me than that receipt covered; and I paid all that-they claimed was against me.
‘ ‘ Mr. Foote: We offer that in evidence. The object of that is to show that in 1894 he applied to pay the taxes against the lot, and they told him the taxes covered by that receipt were all the taxes unpaid against the lot.
“The Court: You knew in 1891 and 1892 you had not paid the taxes for those years ?
“A. I knew I had an arrangement for a man to pay them, and calculated he had paid them. He had control of the property. He had the means to pay them with, and I supposed they were paid until a short time ago.”
He added:
“The one that gave me that receipt was a young man working in the county treasurer’s office, and he is not back • there any more.”
At this time redemption had expired on the sale for the tax of 1891.
My brethren think that this testimony brings the case within the rule laid down in the cases of Hand v. Auditor General, 112 Mich. 597; Wood v. Bigelow, 115 Mich. 123; Hough v. Auditor General, 116 Mich. 663; Kneeland v. Wood, 117 Mich. 174; Kneeland v. Hyman, 118 Mich. 56. But we cannot set aside the sale in this proceeding, as we might perhaps do under a motion seasonably made. But we presume that it is now too late for such a motion, and, if there is any remedy open to the defendant, it is probably by proceedings before the auditor general for a certificate of error. While we cannot deny the writ of assistance, we may exercise a discretion in the 'premises, and defer its issue, to give the defendant an opportunity to make an application to the auditor general, or to the court if that right is not lost by lapse of time.
The order of the circuit court is reversed, and an order will be entered here directing the circuit court to enter an order that a writ of assistance issue at the expiration of 90 days from this date, unless it shall, at or before that time, be