192 Mich. 313 | Mich. | 1916
In this proceeding it is sought by mandamus to compel respondent to vacate and set aside a certificate of error, canceling a tax deed obtained by petitioner, dated May 24, 1909, covering lot 3, sec. 27, township 27 north, of range 15 west, in Benzie county, Mich.
From the petition and answer it appears, undisputed, that the tax deed in question was given upon sale for delinquent taxes regularly levied and- assessed against said land for the year 1905, no part of which was ever paid or tendered by the Standard Cement & Lime Company, then holding the original title, or by its representatives or assigns. Said tax deed was reg-. ularly recorded in the office of the register of deeds of Benzie county, and the notice required by law to bar redemption and authorize possession under it (Act No. 206, Pub. Acts 1893, as amended by Act No. 270, Pub. Acts 1909, 1 Comp. Laws 1915, § 4138) had been duly served upon the holders of the original title, as appeared by the sheriff’s return of service on file in the office of the county clerk of Benzie county. After thus perfecting his tax title and right to possession, petitioner procured and continues in possession of said lands under his title so acquired.
In June, 1915, over six years after said tax deed was issued to relator, and more than ten years after default in payment of the taxes for which the land was sold, the county treasurer of Benzie, on his own initiative so far as known to respondent, and as appears by the answer—
“certified that the taxes for the year 1905 on said lands ‘as assessed in said year included school site with schoolhouse thereon, used and occupied for public purposes under a perpetual lease,’ and that upon return of said certificate of said county treasurer respondent issued a certificate of error, canceling said tax deed previously issued by him in whole,” etc.
That the certificate of error in question was inadvertently and illegally issued cannot be, and is not, seriously controverted. The statute under which the certificate purports to have been issued (section 3921, 1 Comp. Laws, as amended by Act No. 80, Pub. Acts 1903) (1 Comp. Laws 1915, § 4096) expressly prohibits issuing a certificate of error after a period of five years from the date of the sale of land delinquent for taxes, except for the reason that the taxes had actually been paid within the time limited by law, or the land was not subject to taxation at the time of assessing the taxes for which it was sold. Neither of those facts appeared in this case. The certificate of the county treasurer upon which respondent acted did not even bring the small portion of said lands leased for a schoolhouse site under exemptions for educational purposes. These exemptions (section 3830, 1 Comp. Laws, 1 Comp. Laws 1915, § 4001) are limited to “such real estate as shall be owned and occupied by * * * educational and scientific institutions,” etc., and “lands owned by any county * * * or school district and buildings thereon used for public purposes.” The tax for which this property was sold was by statute imposed upon the land, which admittedly did not belong to the school district. If under its occupation the district was entitled to exemption of its building or tene
The county treasurer, on whose certification relative to a school site this certificate of error was issued, does not appear from the answer to have been interested in the property, nor even to have moved for a cancellation of the deed.
“The tax law does not confer upon the auditor general the right to proceed upon his own motion to withhold the conveyance of lands sold- for taxes, or upon his own motion to proceed to cancel deeds. * * * The statute clearly contemplates that somebody interested in the lands shall set the auditor general in motion in order to confer upon him the authority to act.” State Land Commissioner v. Auditor General, 131 Mich. 147 (91 N. W. 153).
It is contended, however, that, conceding the certificate of error was improvidently issued, mandamus will not lie against respondent to vacate the same, for the stated reasons that the statute confers upon him no authority to do so, “there is no unquestionable and legally defined duty imposed upon him to vacate a cers tificate of error issued by him, and therefore mandamus should be denied”; that relator has another adequate remedy, and if respondent’s action in this particular may be directly questioned in any proceeding, it is of a quasi judicial character, and can only be reviewed on certiorari.
In support of the contention that respondent acted
“Mandamus is the proper remedy to compel performance and determine the validity of the reason for refusal.”
In Hoffman v. Auditor General, 136 Mich. 689 (100 N. W. 180), where relator’s rights depended upon a proper construction of the same section of the tax law involved here (section 3921, 1 Comp. Laws, 1 Comp.
The certificate of error, unquestionably issued inadvertently and in contravention of the statute, operates prima facie, both on the records and in a court, to nullify relator’s title and right to possession of the property he now holds. As shown by the answer, no one interested in the title to the property involved moved for the issuance of this erroneous certificate of error. On the face of these proceedings, relator is entitled to relief from this, in effect, defamation of his title, and his only recourse is against respondent. We see no reason under the circumstances disclosed here why relief cannot be given to correct such erroneous ministerial act by this direct and comparatively simple remedy. The action complained of must be vacated and held for naught.
A writ of mandamus may issue, directing respondent to make,, certify, and enter upon his records in proper form an order vacating, setting aside, and annulling said certificate of error. As this proceeding involves the action of a public officer and a question of public interest, no costs will be awarded.