201 N.W. 185 | Mich. | 1924
Since this case was heard in the court below the original plaintiff has died, and the case has been revived in this court in the name of the administrator of her estate. However, when we use the word plaintiff we shall refer to the original plaintiff. Plaintiff resided at Moodus, Connecticut, but loaned money and owned property in Bay county. She and her husband had dealings with defendant Andrew S. Burgeson, which resulted in litigation reaching this court (Balen v. Burgeson,
Upon the hearing of the case defendants sought to again try out the disputed questions of fact involved *270 in and settled by Balen v. Burgeson, supra. The trial judge quite properly held that this could not be done. There were three issues before the court below and they are before us on this appeal.
1. In 1911 defendant was in possession of the premises in question as vendee under a land contract. This contract could not be found. Defendant claims he was not obligated by its terms to pay the taxes, but the attorney for plaintiff in the former case, a man of high standing at the bar and of unquestioned probity, testified to the contrary; he also testified that while the contract was not printed at length in the record in the other case it was used and was before this court, and in the opinion in the former case it was said: "After the deed was made, complainant paid the taxes until 1901, when the contract was made, providing that defendant should pay them."
We are satisfied that defendant is wrong in his contention and that by the terms of the contract he was required to pay the taxes. He defaulted in his agreement, did not pay the taxes for 1911, and now seeks to profit by his default and claim under tax titles which he acquired in the name of his son while he was still in possession under the terms of his contract.
Defendant can not defeat plaintiff's title by setting up this title which he acquired in his son's name while he was in possession of the premises under the terms of a contract by and in which he had agreed to pay the taxes, such title having come into existence solely by his own default, which default set the machinery of the State in motion resulting and ripening into the title he now claims. This is well settled by numerous decisions of this court but a fragment of which we cite.Lacey v. Davis,
2. Plaintiff's agent went to the county clerk, the officer named in the statute (1 Comp. Laws 1915, § 4139) to receive the money on the redemption of the premises from the sale, and paid the sum fixed by him as necessary to redeem. The clerk by mistake omitted a small item. Should the plaintiff be required to pay the penalty of this mistake of a public official by losing her farm? This court has correctly answered this question in the negative in at least three cases: Clippinger v.Auditor General, supra; O'Connor v. Gottschalk,
"The auditor general, under a mistaken view of the law, did not figure sufficient interest by 41 cents. It would be a reproach to the law to hold that, under these circumstances, an owner can be deprived of his property, through no fault of his own, but through a mistake of an officer of the law. Six years after such sale the relator seeks to take advantage of the barest technicality, and deprive the owner of his land. Such claim is without equity or reason, and the discretionary *272 writ of mandamus should not be permitted to accomplish such a wrong."
In the other cases the mistake was made by the county clerk. While plaintiff still owes this small sum and should pay it, her attempted redemption of the premises was not rendered abortive by accepting the figures given by the county clerk.
3. Defendants claim that some work has been done on the farm to make it more suitable for cultivation and gave testimony as to the value of the work but gave no testimony that the value of the premises has been enhanced thereby. However, as we have pointed out, when defendant purchased these tax titles, he but paid the taxes he had agreed to pay; his payment operated as a redemption; when he entered upon the premises he had no title thereto; he was a trespasser (Clugston v. Rogers,
"In so far as the value of the premises is enhanced by these permanent improvements defendant Downer should respond, if plaintiff is entitled to recover at all, less the rental value of the premises during plaintiff's occupancy. But we are cited to no authority which authorizes a recovery for plaintiff's labor in attempting to cultivate the farm, which in no way enhanced the value of the premises returned to defendant Downer and which was not necessary to keep the farm in its then condition."
The decree will be affirmed, with costs.
CLARK, C.J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, and WIEST, JJ., concurred. *273