129 Mich. 507 | Mich. | 1902
This action was trespass quare clausum, begun in justice’s court, and certified to the circuit court upon plea of title, where the plaintiff prevailed, and the defendant has brought error; the judgment being based upon the verdict of a jury of $4.87 in plaintiff’s favor. The locus in quo is a governmental fractional subdivision of section 18, which lies contiguous to Lake Michigan, and, according to the plat, contains 56.70 acres. The accompanying drawing shows the situation. The plaintiff owns the land on section 19, lying south of it, and has for some years been in possession thereof. He claimed to own the premises in dispute, and offered testimony to show title under various tax deeds. On the other hand, the defendant claimed to have been in the actual possession, and that the alleged acts were not trespasses for that reason, and for the further reason that he owned the fee under tax deeds from the State. The court instructed the jury that “the real and only question for consideration in this case is which of these parties had the actual possession of the lands in controversy on the 24th of August, 1900.”
It was not error to refuse to instruct the jury that the title alone, even if found in the plaintiff, would not entitle plaintiff to recover. It was covered by the instruction that plaintiff could not recover unless he was found to have been in actual possession.
Actual possession by the plaintiff being made the crucial question in the case, and being determined by the jury, other questions become unimportant, except as-they relate to instructions regarding what constitutes actual possession, or themselves present a controlling principle superior to that of actual possession by the plaintiff. Thus, the court instructed the jury that the defendant’s deeds were void, and conveyed no title. If it can be said that title in the defendant would constitute a defense notwithstanding plaintiff’s actual possession, we must investigate the questions relating to such title. It is the general rule that a defendant owning the title to land cannot be found guilty of trespass for peaceably entering upon the same. Smith v. McAdam, 3 Mich. 506. See, also, 26 Am. & Eng. Enc. Law, pp. 600, 601, where numerous authorities are collected.
The defendant claimed title upon two grounds — First, under the deeds from the auditor general; second, by adverse possession. It is not necessary to discuss the latter, as the jury must have found that there was no such title in determining that plaintiff was in possession. Under the proof of paper title, a legal question was presented. This was evidently so understood by the trial judge, and he decided it by holding it void. To understand this question, a further statement of fact is required. The
“ Southwest fractional quarter of section 18, town 8 S., and range 21 W., Berrien county, was erroneously sold and deeded for said years’ taxes, for the following reasons: Sale for taxes for 1886 invalid for the reason it contained a reassessed tax of 1883, the items being in fact the taxes rejected for the year 1884; sale for taxes of 1887 and 1888 was invalid, there being no dollar mark in the decree for either year; sale for taxes for 1889 and 1890 was invalid for the reason there was no report of sale in either year; sale for taxes of 1892 and 1893 and 1894 was invalid for the reason held as State tax land for taxes assessed for the year 1901, and also for other jurisdictional reasons; sale of 1894, no proof of publication; sale for taxes of 1892 and 1893, decree entered without jurisdiction.”
It is contended by counsel for the defendant that the description west fractional quarter of section 18 is identical, in effect, with that of west fractional half of section 18. This we think is so, as will be seen from the plat. It is claimed that the deeds issued to defendant were not void for the reason stated, and that a cancellation upon that ground is void, and, as that is the only reason given for the cancellation of the deed for the tax of 1891, defendant’s title is complete under the deed for the tax of that year; also under the deed for the tax of 1885, which is said not to have been canceled. On the other hand, it is urged (1) that the certificate of error cannot be collaterally attacked; and, (2) if it could be, there is no presumption
We think the latter contention may be disposed of by saying that the record shows that, seven days after issuing the certificate of error, a deed was issued of the same premises to the plaintiff under the description west fractional quarter of section 18. We feel justified in assuming that the auditor general would not have done this if his certificate of error had been based on any defect not therein stated.
The certificate of error, if a judicial act, is one of a limited tribunal, whose jurisdiction should, under ordinary rules, appear upon the face of its proceedings; and whether or not the failure of a certificate to affirmatively show the jurisdiction, by stating the error acted upon, would be fatal to the certificate, — which we need not decide, — we are of the opinion that in any proceeding a certificate which shows affirmatively that it was issued upon a supposed error or defect, which was clearly not such as a matter of law, should be treated as void. That being the case here, the court should not have instructed the jury that the defendant had no title, as on the face of the proceedings he had title under his deed for the tax of 1891, which was not affected by the certificate of error or the subsequent deed to plaintiff.
Again, the certificate of error does not purport to cancel the tax of 1885 or the deed for the tax of 1885. Had such title been deeded by a separate deed, it could not be claimed that it was affected. Being included with taxes for other years in a common deed, it is said that the certificate goes to the whole deed. This is not a necessary conclusion from the act. The deed might be annulled in part by the certificate, and not in toto, if the errors did not affect all of the titles covered by it, which apparently they did not.
Some questions are raised over the nature of the evidence to prove possession and adverse possession; but we do not discuss them, thinking that our former decisions are a sufficient guide for future proceedings.
