140 Mich. 483 | Mich. | 1905
The complainant received a quitclaim deed of the premises involved in this suit from Diantha Winters, his stepmother, on April 11, 1903. The only title held by her at that time was based upon an auditor
“Notice.
“ To Percy T. Cook, of Grand Rapids, Michigan, grantee in the last recorded tax deed of the property herein described.
“Take notice, that sale has been lawfully made of the following described land for unpaid taxes thereon, and that the undersigned has title thereto under tax deed issued therefor, and that you are entitled to a reconveyance thereof at any time within six months after service upon you of this notice, upon payment to the undersigned of all sums paid upon said purchase, together with one hundred per cent, additional thereto, and the fees of the sheriff for the service of this notice, to be computed as upon personal service of a declaration as commencement of suit, and the further sum pf five dollars for each description, without other additional costs or charges. If payment as aforesaid is not made, the undersigned will institute proceedings for possession of the land.
“Yours respectfully-
“Diantha Winters. “Place of business West Olive, Michigan.”
This notice was not dated, and we have been unable to ascertain when it was placed in the hands of the sheriff, if at all. It bears a certificate purporting to be signed by the sheriff of Ottawa county as follows:
“State of Michigan, Ottawa County.} SS.
“ I do hereby certify and return that after careful inquiry and diligent search, I am unable to ascertain the whereabouts or postoffice address of Percy T. Cook, the*485 grantee named in the last recorded tax deed of the premises herein described, or the heirs of said grantee, or the whereabouts or the postoffice address of the executor, administrator, trustee or guardian of such grantee.
“Henry J. Dykhuis, Sheriff.
“By Hans Dykhuis, Deputy Sheriff.
“ Oct. 16th, 1902.”
Thereupon the statutory notice was published in a weekly newspaper printed and published in said county, and proof of the requisite publication was duly filed. This notice was not dated, but publication began October 9, 1902, and ended November 13, 1902.
As has been stated, Frank Winters received a quitclaim deed from Diantha Winters April 11, 1903. He verified the bill on June 15, 1903. It was filed to quiet his title, and subpoena was personally served on Percy Cook at his home, in. Brooklyn, Jackson county. An answer in the nature of a cross-bill was filed, alleging a tender of the amount necessary to redeem the land, and praying that his title might be decreed and quieted against complainant. Proofs were taken, and a decree was rendered for the complainant. Defendant has appealed.
The validity of the tax proceedings is not questioned. Complainant’s deed gave him all rights held by Diantha Winters. The questions in the case relate, first, to the sufficiency of the notice and service; and, second, whether defendant was not in possession when the bill was filed.
It is contended that the defendant having once been in possession yielded to a vendee under, a contract of sale, who subsequently removed from the premises, and his improvements thereon, leaving one Shearer, a neighbor, in ■charge of the place, he (the defendant) was in actual possession of the premises, and therefore that ejectment, or a writ of assistance under the statute, and not a bill to quiet title, should have been the complainant’s remedy, in the absence of clear proof of intentional abandonment. We find it unnecessary to discuss this subject, as we must dispose of the case upon another and broader ground.
“No writ of assistance, or other process for the possession of any land * * * shall be issued until six months after there shall have been filed with the county clerk of the county where the land is situated, a return by the sheriff of said county, showing that he has made personal service, or until substituted service as hereinafter provided has been made, * * * which notice shall be in the following form: [Here follows the form to which the notice in this case conforms.]
‘ ‘ Provided, That if grantee or grantees, or the person or persons holding the interest in said lands as aforesaid, shall be residents of any county in the State other than the county in which the land is situated, then such return as to such persons shall be made by the sheriff of the county where such person or persons reside: Provided further, If any grantee or grantees, or the person or persons holding the interest in said lands as aforesaid, shall be nonresidents of this State, if from the said record aforesaid, or from inquiry, the sheriff can obtain the postoffice address of such grantee or grantees, or the person or persons holding the interest in such land as aforesaid, or if the said address be known to him, he shall send to such person or persons aforesaid a copy of said notice by registered letter, and return the receipt as receipts received for said letter or letters, with his return to the county clerk’s office:
“ Provided further, That if any person entitled to notice, as hereinbefore provided, is dead, or if his estate shall be under control of a trustee or guardian, then and in such case notice as hereinbefore provided may be served upon the executor or administrator of said deceased person, or upon his heirs, if there be no executor or administrator, or upon the trustee or guardian of any incompetent person, with like effect as if served upon the grantee, mortgagee, or assignee:
“ Provided further, That if the sheriff of the county where any such lands are located shall make a return that after careful inquiry he is unable to ascertain the whereabouts or the postoffice address of the grantee named in. the last recorded deed, or the mortgagee named in the last recorded mortgage, or the assignee of record of said mort*487 gage of said premises, or of the heirs of said grantee or mortgagee or assignee, or the whereabouts or the post-office address of the executor, administrator, trustee, or guardian of such grantee, mortgagee, or assignee, then such notice as is herein provided for shall be published six successive weeks in some newspaper published and circulating in the county where such lands are located, and due proof of publication, by affidavit of the printer or publisher of such newspaper, shall be filed with the county clerk, and shall be in lieu of the personal service above provided for.”
This section was designed as a relief to owners of delinquent tax lands, and to prevent the divestiture of their titles, beyond redemption, through ignorance, inattention, or carelessness. It plainly indicates that the purchaser is expected to give an express notice, wherever practicable, with a six-months interval thereafter, within which the land may be redeemed. It imposes upon the purchaser the obligation of good faith, and an earnest effort to ascertain the owner and his whereabouts, and an honest attempt to give him actual notice and the statutory opportunity. Any effort to avoid it through fraud or collusion, or intentional omission to comply with the spirit of this statute, should not be permitted to be effective, if the courts can legitimately avoid it. The statute imposes a duty of ascertaining, if possible, where the landowner lives, and, if it can be learned by reasonable endeavor that he lives in any county in this State, the notice must go to the sheriff of that county for service, and be served by him, if it -can be. Until this effort has been made, there is no occasion or propriety in a delivery of a notice to the sheriff of the county where the land lies, and where it is known that the delinquent owner does not reside; and, if it is done, it should not be held that the law has been complied with. In this cause the purchaser, or her agent in the transaction, had some knowledge, and an opportunity to obtain much information, about the owner of the premises. It must have been known or at least supposed by them that Mr. Cook did not live in Ottawa county, for the notice is
Counsel insists upon complainant’s right to a technical construction and application of this statute, and of the rule that an officer’s return cannot be attacked collaterally; insisting that it was a return of process in the original tax case. If this notice can be called process, it was fraudulently obtained by complainant’s grantor, and abused; and we have found that it was used as a pretext to obtain a title to another’s land, which might be called, in the language of Mr. Justice Campbell in his opinion in the case of Michels v. Stork, 52 Mich. 260, an abuse of process for illegal purposes. A purchaser of tax titles may have a writ of assistance upon application to the court which
The defendant may take a decree in accordance with the prayer of his cross-bill, with costs of both courts, subject to the deduction of the amount due the complainant for taxes, penalty, and interest at the time of the tender.