Barstow v. City of Big Rapids

22 N.W. 103, 56 Mich. 35, 1885 Mich. LEXIS 602

• Court: Michigan Supreme Court
• Decided: January 21, 1885
• Status: Published

Opinion

Champlin, J.

The facts in this case are the same as those before us in the case of Herrick v. Big Rapids 53 Mich. 554, in which the opinion was filed on the thirtietli of April last, with but two exceptions : first, Barstow was the guardian of John T. Herrick and Marcus E. Herrick, who are legatees under the same will of John T. Brown, deceased, which legacy was in the same situation as was that of the plaintiff in the former case; and second, Barstow was a member of the board of review of the city of Big Rapids, and when the assessment rolls were before the board he made no objection to the assessment of the legacies to him as guardian.

The tax was paid by Barstow under protest, and this suit brought to recover it back. When the supervisor of the ward in which Mr. Barstow lived called upon him when making his assessment, he inquired of Mr. Barstow for a statement of the property in his hands as guardian of said minors, and was informed by him that he had no property at that time belonging to said wards; nevertheless the supervisor assessed him for the amount of the unpaid legacies then in the hands of the executors.

The case of Herrick v. Big Rapids is decisive of this. There is no merit in the point that the plaintiff was a member of the board of review. Iiis failure to object to the assessment as illegal cannot be allowed to operate to the prejudice of his infant wards, and neither they nor their estate are bound thereby.

The judgment must be reversed, with costs of both courts, and a judgment entered here for $492.96 and interest at seven per cent, from January 27, 1883.

The other Justices concurred.