130 Mich. 676 | Mich. | 1902
The petition in this case is filed by one claiming title to the E. \ of the N. E. ¿ of a section of land in Bay county, to vacate two decrees for taxes, for the years 1890 and 1891, respectively, under which the lands were bid in for the State in 1893, and subsequently sold and conveyed to the defendant Hoffman by the auditor general. A decree was made in substantial accord with the prayer of the petition, and defendant Hoffman has appealed.
The land in question was unoccupied until Hoffman bought it, when he went into possession. It appears that, at the time of the assessment, the north 40 acres belonged to a copartnership composed of Archibald G. Lindsay and Patrick M. Gamble, and that they were residents of this State, though not of Bay county. The south 40 acres belonged to parties residing in New York, named Heath and • Bossitier. Both 40-acre parcels were assessed together as
The petitioner, Tromble, claims to have acquired title to both parcels. As to the north 40, he received a deed from Lindsay, as survivor of Lindsay & Gamble, dated May 24, 1897, recorded July 14, 1897. This deed states that “the lands above described are part of the estate of the late firm of Lindsay & Gamble, and said Lindsay is required to make this sale to obtain funds from which to meet the obligations of said copartnership. ” It is claimed, on behalf of the petitioner, that Heath and Rossitier had a title to the south 40, but defendant insists that an undivided one-eighth interest was lacking. In January, 1900, they deeded to petitioner whatever title they had.
The petitioner had early notice of Hoffman’s'claim, for he saw him at work upon the premises, and ordered him to desist, and sent him a letter warning him not to tres
While the motion to set aside the order pro confesso was pending, petitioner filed two petitions for leave to file bills of review in the tax proceedings referred to, in which he alleged upon oath that he became the owner of the original title to the north 40 on May 24, 1897, and of the south 40 on June 15, 1900. Upon the hearing of these petitions, they were dismissed. Soon afterwards the petition in this proceeding was filed, and notice that the same would be brought o'n for hearing on January 14,1901, was served, with a copy of the petition, upon defendant Hoffman, and presumably upon the auditor general. Hoffman answered, and, before the matter was heard, petitioner filed an application with the auditor general asking that the defendant’s tax title be canceled. This was afterwards denied. Proofs were takep. in the chancery case, and at the hearing of said cause it was determined to submit the proceedings upon the petition at the same time; the proofs in the chancery case being used in connection therewith by stipulation.
Did the court get jurisdiction to adjudicate and foreclose the tax lien on the north 40 for the tax of 1890? The entire 80 was assessed as “unknown.” When the
It is urged that, under the law of 1889, a failure to serve a subpoena upon the delinquent taxpayer or the actual owner was fatal to the jurisdiction of the court as to the land owned by such persons, and that notice by publication would not cure the defect. We are cited to the following cases in support of this: Taylor v. Deveaux, 100 Mich. 581 (59 N. W. 250); Fowler v. Campbell, 100 Mich. 398 (59 N. W. 185); Coyle v. O’Connor, 121 Mich. 596 (80 N. W. 571). An examination of those cases will show that in no one of them was the land assessed as unknown or nonresident, but inferably, at least, it was assessed to residents. In re Wiley, 89 Mich. 58 (50 N. W. 742), is a Case which has some bearing upon this question. The land in that case was assessed to the apparently resident owner, and subpoena was issued against and served upon him; but before its issue he had sold the land, and the petitioner had become the owner. He attacked the jurisdiction upon the ground that subpoena should have issued against and been served upon him. The court held otherwise, saying that the “delinquent taxpayer who is a resident of this State ” meant persons
“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 taxpayer who is a resident of this State. The legislatüre 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 nonresident, 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 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 taxpayer 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.”
Upon the face of the record, the land was assessed to unknown parties, if not nonresidents. In such a case jurisdiction was obtained by publication, under the interpretation of the statute quoted, and the three cases cited have no application. See, also, Nowlen v. Hall, 128 Mich. 274 (87 N. W. 222), for a similar case. This is 'conclusive of the jurisdictional question in the proceedings to enforce the tax of 1890 upon the north 40.
What has been said of the tax of 1890 is true of that of 1891, in part. The record shows that Heath and Rossitier
This would be conclusive as to this title, were it not for other questions raised by the defendant; e. g., he claims that the appearance of counsel who contested the tax upon this 80-acre parcel, which included the 40 under discussion, conferred jurisdiction upon the court, and renders immaterial questions relating to process. It is undeniable that, if it can be said that Lindsay & Gamble appeared and contested these taxes, defendant is correct, and jurisdiction was acquired, whether process was regular or not.
It is claimed on behalf of the defendant that it must be assumed that the appearance of Mr. McHugh was for Lindsay & Gamble. Manifestly, if it was not, there was no waiver of jurisdiction, unless we are to say that any volunteer may waive process for another, which cannot be true. Had Mr. McHugh professed to appear for Lindsay & Gamble, who should then be called upon to decide whether the party, on discovery of that fact, might not move in the same proceeding to vacate the decree; but a
Counsel for the defendant seeks to break the force of this objection by the claim that, inasmuch as Lindsay & Gamble did not ask the board of review to have this assessment corrected, neither they nor their grantees can now complain of it. We may safely treat this as so, for the purpose of the case, and say that the tax may not be held invalid by reason of the error- in assessment. It is not the erroneous assessment, but the failure to bring in the owner, who was entitled to service of process, though he might not complain of the manner in which his land was listed. The appearance for Heath and Rossitier was ineffective to waive this jurisdictional question for Lindsay or Gamble.
' From the foregoing it will be seen that the decree under which the defendant claims title on the sale for the tax of 1891 was void as to the north 40 for want of jurisdiction, and that the same appears on the face of the record, as the court will take judicial notice of the times of holding its terms. Ledyard v. Auditor General, 121 Mich. 56 (79 N. W. 918); Roberts v. Loxley, 121 Mich. 63 (79 N. W. 978). It is therefore subject to attack in collateral proceedings. The same cannot be said of the south 40. In each case Heath and Rossitier saw fit to appear and contest the tax, which gave the court jurisdiction, although the process may have been defective or not served, and notwithstanding the hearing at the same term that the order was made.
Counsel for the petitioner attacks the decree upon another ground, viz., that the amount decreed was in each
The statute forbids the setting aside a sale after the lapse of one year from confirmation. In Benedict v. Auditor General, 104 Mich. 269 (62 N. W. 364), we held that, where the proceedings were absolutely void for want of jurisdiction, section 70 of the tax law did not preclude a review of the question on petition to vacate the decree. In the case of Berkey v. Burchard, 119 Mich. 101 (77 N. W. 635, 79 N. W. 908), it was held that, under section 70 of the tax law of 1893, “leave to file a bill of review should not be granted in a tax proceeding after confirmation of the sale, unless a total want of jurisdiction to make the decree is shown, or one of the two causes mentioned in the statute exists. ” In the case of Spaulding v. O’Connor, decided at the same term, and reported in 119 Mich. 45 (77 N. W. 323), it was clearly indicated that “a sale will not be set aside after confirmation, either on petition or bill of review, except for one of the reasons specified, or (under Benedict v. Auditor General) for defects going to the jurisdiction.” See, also, Wilkin v. Keith, 121 Mich. 74 (79 N. W. 887).
It is said that the decision in the case of Morgan v. Tweddle, 119 Mich. 350 (78 N. W. 121), followed by
It is undoubtedly within the power of a court of chancery to review its own action, in a direct proceeding, after the lapse of more than a year, in all ordinary cases; and this case is no exception, unless the tax law has made it so. In putting this provision into the law.(Act No. 206, Pub. Acts 1893, § 70), the legislature has attempted to curtail the power of review in this class of cases. As we pointed out in Spaulding v. O’Connor, a technical construction would not have permitted us to set aside sales by this method even where there was an absence of jurisdiction, and would require us to treat it as an absolute bar as to irregularities, except in the two cases mentioned in the statute, leaving parties to seek other relief.
But if these cases are overruled by the later cases cited, it does not follow that the decree should be vacated. The decree is not void upon its face, and, while it may be attacked in a direct proceeding, it must have all of the verity of a decree until it is attacked. See Wilkin v. Keith, 121 Mich. 73, 74 (79 N. W. 887). An analogous question was discussed in Peninsular Sav. Bank v. Ward, 118 Mich. 93 (76 N. W. 161, 79 N. W. 911). Being voidable merely, the court cannot question its validity in a collateral proceeding; nor is it bound to set it aside in a direct one, unless justice demands it. In the case of Cook v. Hall, 123 Mich. 378 (82 N. W. 59), it was sought to set aside decrees for defects in their nature jurisdictional, some of which must have appeared from records of the court, if not in the case, and therefore subject to collateral attack. But relief was denied upon the ground of laches, two years having elapsed after the petitioner learned of the sale. Mr. Justice Grant alluded to petitioner’s disregard of the known fact that his lands were assessed and taxed, and that, if payment of the taxes was not made, they would be, and were, under the law, sold. ,
In Spaulding v. O’Connor, supra, the rule was recognized in the following language:
“ The practice of -setting aside sales upon foreclosure is not a statutory one, but is done in the exercise of a power essentially equitable, inherent in the court of chancery. Its exercise is not limited to cases where there is irregularity, but, where the sale is not void, special circumstances appealing to equitable considerations must exist * * * Not only must there be equitable considerations to move the court, but there must also be an absence of laches.”
In the present case the persons who owned these lands knew that they would be taxed, and sold if the taxes were not paid. The owners of the south 40 appeared and contested the tax, by counsel, and presumably knew of the decree. Yet they took no steps to save the land or vacate the decree. The owners of the north 40 paid no attention to it, and, if the deed correctly states the consideration, sold it to the petitioner for $1. What was the petitioner’s relation to these lands ? He claims to have had some kind of an arrangement with the owners in regard to these lands before the State bought them. It was his duty to pay the taxes, in certain contingencies. He knew that they were taxed, knew that they were returned in time to redeem them, knew that they were purchased by the State, and corresponded with the auditor general about them. Subsequently he knew that Hoffman claimed them, and wrote to him and saw him in relation to them. He then bought the original title himself, and laid claim to them, and finally took legal proceedings, but not in the first instance to set aside this decree. He began ejectment, claiming the tax title to be void. He filed a bill upon the same theory. Later, he filed a bill of review to set aside
The decree is reversed, and petition dismissed, with costs.