104 Mich. 38 | Mich. | 1895
This suit was instituted to quiet the title to 80 acres of land in the county of Osceola. The bill alleges that the complainants are owners, deriving title under deeds from the Auditor General on sales of the land for taxes for the years 1872 to 1880, both inclusive; that complainants are in possession; that defendants set up a title adverse to complainants. The answer admits the sale of the land for taxes as charged in the bill, and denies
We think the practice pursued, in this case was so far irregular and unwarranted that the decree ought not to stand. The title set out in complainants* bill was primo facie valid, and if defendants desired to impeach this title it was their duty to set up specifically their objections, and set up facts which, if proven, would defeat the tax sale. Griffin v. Dogan, 48 Miss. 11; Meeks v. Whatley, 48 Id. 337; Belcher v. Mhoon, 47 Id. 613. See, also, Gamble v. East Saginaw, 43 Mich. 367; Jenn. Ch. Prac. 79; Match v. Hunt, 38 Mich. 1; Dale v. Turner, 34 Id. 405; Fosdick v. Van Husan, 21 Id. 567; Van Dyke v. Davis, 2 Id. 144. It is in general within the discretion of the trial judge to open a cause for further proofs at any time before decree, and such discretion will not be reviewed where the power exists, except in case of abuse. But where a party seeks to open a case to set up proof of facts not set out in the pleadings in such manner as to have entitled him to introduce the testimony in the first instance, and fails in his petition to point out what the testimony sought to be offered will show, we think that it is an excess of power to open the case.
Complainants discuss other questions. They insist that, as defendants claim under a quitclaim deed from a party not in possession, they cannot be deemed good-faith purchasers. We are unable to see how any such' question is involved in the present case. The sole question which would be open, were the pleadings so framed as to admit of its consideration, is whether the complainants* tax title is valid, as, if it were not, no case is made against the defendants* title, which was derived from the government. Under our statute (How. Stat. § 5657), the fact that the land was in possession of complainants at the time of the
It is unnecessary to discuss at length the evidence offered to show the invalidity of the tax. There was testimony which tended to show that there was included in the tax levy $200 illegally added to the salary of the judge of probate. If this should be proven on a new trial, it would be sufficient to avoid the tax deed of 1875. Douvielle v. Board of Supervisors, 40 Mich. 585; Silsbee v. Stockle, 44 Id. 561; Hammontree v. Lott, 40 Id. 190; Lacey v. Davis, 4 Id. 140; Case v. Dean, 16 Id. 12; Edwards v. Taliafero, 34 Id. 13. The deeds for the other years are admitted to be void.
The case will be remanded, with leave to defendants to amend their answer, setting up defects claimed to exist in the proceedings taken to spread the tax. The testimony taken -may stand, provided the complainants shall be given the right to cross-examine defendants’ witnesses. Complainants will recover costs of this Court. Costs of the court below will abide the final event.