Ball v. Busch

31 N.W. 565, 64 Mich. 336, 1887 Mich. LEXIS 706

• Court: Michigan Supreme Court
• Decided: January 20, 1887
• Status: Published

Opinion

Sherwood, J.

The plaintiffs bring ejectment against the defendant to recover the west half of section 26, and the south half of the north-west quarter of section 23, in town 52 north, of range 30 west, situate in the county of Baraga.

The title of the plaintiffs, by a chain of conveyances from the United. States down to the time of bringing suit, and the ouster of defendant, were established on the trial.

The defendant seeks to defend under tax deeds given by the Auditor General upon sales made of the property for taxes for the years 1869, 1872, 1873, 1874, 1875, 1876, 1877, 1878, 1879. 1880, and 1881.

The cause was tried in the Baraga circuit before Hon. W. D. Williams, circuit judge, without a jury, who made a special finding as follows:

“ That the defendant is guilty of unlawfully withholding the premises above mentioned, as alleged by the plaintiffs in their declaration, and that the plaintiffs are entitled to hold the same in fee;”—

And gave judgment accordingly. The defendant brings error.

The record is quite full, and must be regarded as containing all the evidence to be considered on the question raised. All the assignments of error are based upon rulings relating to the validity of the tax titles, and to the admission of evidence relating thereto.

The finding of the court takes the place of a verdict by a jury, and, so far as questions of fact are concerned, is conclusive, if there is any evidence given tending to support it. The general finding in the case must control, unless it is based upon testimony improperly admitted; and this leads directly to the errors alleged relating to the testimony.

Nine errors are assigned involving the rulings of the court in taking testimony. We have carefully examined the record, and the arguments of counsel relating to each of these assignments, and do not find any error committed by the court in any of the rulings.

The other nine assignments of error raise legal questions relating solely to the validity of the tax titles offered in evidence by the defendant. These questions are not new. They have been before this Court, and nearly all passed upon, and those which have not fall within the principle of the decisions of this Court already made, and a rediscussion of the questions would not be profitable now, and certainly is entirely unnecessary to a proper decision of the case.

That the several tax titles offered in evidence are clearly invalid under our previous decisions is clear, and the circuit judge did right in so holding. Cooley, Tax. (2d ed.) 339, 429, 430, 492, 517; Clute v. Barron, 2 Mich. 192; Lacey v. Davis, 4 Id. 140; Clark v. Crane, 5 Id. 154; Crittenden v. Robertson, 13 Id. 61; Farmers’ & Mechanics’ Bank v. Bronson, 14 Id. 373; Case v. Dean, 16 Id. 33; Moser v. White, 29 Id. 60; Powers’ Appeal, Id. 504; Robbins v. Barron, 33 Id. 124; Upton v. Kennedy, 36 Id. 220; Houghton Co. v. Auditor General, Id. 271; S. C. 41 Id. 30; Silsbee v. Stockle, 44 Id. 565; Thomas v. Collins, 58 Id. 64; Busch v. Nester, 62 Id. 381.

We may properly say, in conclusion, the rejection of the •deeds complained of, when offered in evidence, was correct. Their invalidity appeared on the face of the instruments. How. Stat. §§ 1092, 1165, do not apply to such a case. The Legislature did not intend to say that a paper shall be held prima facie valid, when it carries upon its face the evidence that shows it void.'

The record shows no error that we have been able to discover, and the judgment entered upon the finding of the circuit judge must be affirmed.

The other Justices concurred.

Note. — Act No. 229, Laws of 1881, amended by Act No. 7, Laws of 1882, provided for the sale of “State tax lands'” by the Auditor General at a gradually reduced price, 'measured by fixed dates, and the amended act authorized the sale of all such lands remaining unsold at the annual tax sales of 1884, which were to be conducted in the same manner, as near as may be, as sales for delinquent taxes had been by county treasurers, who were required to give to purchasers the like certificates, and with like effect, as those theretofore given to purchasers of State tax lands, and the Auditor General was required, on their presentation, to execute and deliver to the purchaser a deed conveying all the right, title, and interest of the State in and to said State tax lands, subject to taxes for 1881 and subsequent years. This amended act was approved March 13, 1882, and took immediate effect, and was passed, as was the original act, to enable the State to dispose of the immense quantity of State tax lands which had accumulated on its hands.

March 14, 1882, an act revising the tax laws of the State (Act No. 9, Laws of 1882) was approved, and took immediate effect. This act provided for proceedings in the equity courts, culminating in decrees fixing the amount of the tax lien, and providing for a sale of lands charged therewith by the county treasurers on the first Monday in May, instead of October, as provided by the old law. The first sale was held May 5, 1884, under the new law, at which time the sales of State tax lands provided for by sections 4 and 5 of Act No. 7, Laws of 1882, were also held.

Act No. 11, Laws of 1882, approved March 14, 1882, and ordered to take immediate effect, repealed the tax law of 1869, and various other acts affecting taxation, with a saving clause, by which the repealed acts remained in force only for the completion of all proceedings theretofore begun for the collection of taxes, except as otherwise provided by law, and for the protection of all rights gained thereunder, and the conveyance of all land theretofore sold, or that might thereafter be sold, and all actions commenced and then pending, under the provisions thereof. Goodman v. Nester, post.

The constitutionality of the general tax law of 1882 was questioned in the Marquette and Wayne circuit courts, and sustained in the one and denied in the other, and the Supreme Court, by an equal division, affirmed both judgments. State Tax Law Gases, 54 Mich. 350.

Act 153, Laws of 1885, approved June 9 of that year, and taking immediate effect, repealed the law of 18.82, and-substantially restored the 1869 law, so far as the sale of lands delinquent for taxes was concerned. Section 68 provided for the sale, under the provisions of the new law, of all lands held by the State under bids made at the tax sales of May 5,1884, and of all lands “heretofore assessed or returned as delinquent for non-payment of taxes thereon upon which no sale has been made.” Section 118 provided that any tax deed issued pursuant to a decree made under the general tax law of 1882 should transfer to the grantee the lien of the State on the land for the consideration expressed in the deed, and converted such deed into a mortgage for such amount, with the right on the part of the grantee to foreclose it at any time within two years from June 9,1885.

September 29, 1885, in the case of Thomas v. Collins, 58 Mich. 64, the Supreme Court held a sale made under the 1882 tax law, for the taxes of 1881, void, for the reason that under its title said law was entirely prospective in its operation.

February 3, 1887, in the case of Nester v. Busch, post, the Court decided that the provisions of section 118 of Act No. 153, Laws of 1885, above cited, were not fairly within the title of the act, which was identical with that of the general tax law of 1882.

March 1, 1*87, Act No. 17, Laws of 1887, was approved, and provided that all proceedings for the collection of unpaid taxes assessed prior to the passage of Act No. 153, Laws of 1885, and for the sale of property, might be had in accordance with its provisions, and should be as valid-as if such taxes had been assessed under the 1885 act, and also attempted to validate all sales made under said act.

In the case of Davenport v. Auditor General, 38 N. W. Rep. 211, the Court held that portion of the general tax law of 1882 providing for the assessment and review of property constitutional, and that an assessment and review in the spring of 1885 for the taxes of that year, made under the 1882 law, was legal, and that the collection of taxes thereafter levied by virtue of such assessment, under the 1885 law, could be enforced under the provisions of the latter act.

In Humphrey v. Auditor General, 38 N. W. Rep. 214, a bill was filed to restrain a sale for taxes assessed in 1884 under the 1882 law, based on the provisions of the 1885 act. The case was being argued the day the 1887 act took effect, and the Court dismissed the bill, and held the taxes a lien on the land, but for want of proper legislation their collection could not be enforced until the law of 1887 took effect, and that proceedings to that end must be taken de novo.

November 1, 1888, in the case of Hall v. Perry, 40 N. W. Rep. 324, the Court held a sale of land made under the retroactive provisions of the 1885 law for the taxes of 1882 and 1883, assessed under the 1882 law, absolutely void, the 1885 law being prospective only in its operation; and that section 2 of Act No. 17, Laws of 1887, which attempts to validate such void sales, was unconstitutional.