Closser v. Abraham

279 N.W. 509, 284 Mich. 272, 1938 Mich. LEXIS 491

• Court: Michigan Supreme Court
• Decided: May 4, 1938
• Docket: Docket No. 59, Calendar No. 39,767.
• Status: Published

Opinions

Chandler, J.

The issue presented by this appeal is, Was it necessary that plaintiff deposit the amount of money set forth in the notice for reconveyance with the clerk of the court before filing an action in ejectment where the land had been sold on State tax land deed?

Justice Bushnell’s opinion answers this question in the affirmative. I am not in accord with his determination thereof. The solution to the foregoing issue is derived from the following excerpt from 1 Comp. Laws 1929, § 3466 (Stat. Ann. § 7.119), effective September 28, 1907:

“In case of such failure to give required notice for reconveyance within the period of five years from the date such purchaser, his heirs or assigns, shall become entitled to a tax deed to be issued by the auditor general, the person or persons, claiming title under the tax deed or certificate of purchase shall be forever barred from asserting such title or claiming a lien on the land by reason of such tax purchase.”

My Brother relies upon White v. Dunsmore, 167 Mich. 542; Powell v. Pierce, 168 Mich. 427; Closser v. McBride, 182 Mich. 594. To these cases may be added Gustin v. Fitzpatrick, 182 Mich. 640; Huron Land Co. v. Lobdell-Churchill Manfg. Co., 183 Mich. 45; Bretz v. Hitchcock, 188 Mich. 492; Dunn v. Papenfus, 202 Mich. 131; Burch v. Nippress, 213 Mich. 185. All of the foregoing cases may be distinguished from the present suit upon the grounds that five years had not elapsed from the date the tax title purchaser became entitled to a tax deed or the case arose prior to the time the above mentioned statute became effective. The case of Jacques v. Bosman, 181 Mich. 495, clearly enunciates the rule that the five-year limitation fixed by Act No. 58, Pub. Acts 1907 (1 Comp. Laws 1929, § 3466), does not apply to deeds issued before the act took effect.

In White v. Dunsmore, supra, the court held that upon sale of a tax title by the State the tax laws only confer a privilege of reconveyance to the original owner, and without securing reconveyance or depositing with the register in chancery the amount necessary to obtain a reconveyance, he cannot maintain an action in trespass. Since the original owner could not maintain trespass against the State, the court was correct in deciding that a mere privilege of reconveyance when a tax title was sold to a third party does not increase the former’s rights without reconveyance. Upon analysis of the Dunsmore Case I find that the tax titles were acquired in 1910, the same year in which plaintiff started his trespass action, and in the following year this court rendered its decision. It therefore follows that defendant had several years remaining under the provisions of 1 Comp. Laws 1929, § 3466, in which to give notice of reconveyance. Thus, the court in effect recognized that a judgment against the tax title purchaser without redemption or a deposit of money with the register in chancery would be manifestly unfair if the defendant perfected his title during the time provided by statute. It is upon this theory no doubt that the court said:

“If the owner may maintain trespass at all, his right of action accrues when the trespass is committed, and cannot be affected by his subsequent refusal to obtain a reconveyance of the State’s title. If he does not secure a reconveyance of the land, and is out of possession, he has in fact lost nothing by the injury to the freehold, unless he has the right meantime to deal with the land as an owner — to cut and sell timber, for example. On the other hand, if the original owner, in or out of possession, injures the freehold, and fails to pay for a reconveyance, the tax title purchaser is injured, because he does not finally secure what the State, as absolute owner, sold to him. The former owner may obtain a reconveyance of the land, and if he does he is entitled to have reconveyed the property which the State conveyed by its deed, unchanged and undiminished in value by any acts of his vendor. And if he does not redeem, the purchaser from the State is entitled to the land, uninjured by acts of the former owner thereof, committed after the State acquired the title. We are necessarily brought to this conclusion by the language of the statute and the decisions of this court. If the purchaser from the State acts promptly, or if the former owner pays, as he may, to the register in chancery, the sum necessary to secure a reconveyance, the interval of time is short. And we perceive no reason for saying that, once the rights of the parties are determined, an action may not be maintained by the proper party to recover damages for any injury to the freehold by the other party, or that meantime threatened injury to the freehold may not be restrained by either, by the process of the court of chancery. But we are of opinion that the trial court was right in holding that the former owner could not, before securing reconveyance of the land, maintain this action.”

In the instant case the tax titles were acquired in 1927, and proceedings contesting the same for improper notice of reconveyance were commenced after the five-year period provided by the statute had run. White v. Dunsmore, supra, is, therefore, inapplicable to the present situation.

In Powell v. Pierce, supra, the government title holder sued in ejectment and the defendant resisted upon the strength of two tax deeds from the State dated October 2, 1902 and August 22, 1903. This court in 1916 held that having failed to pay to the register in chancery the amount necessary to secure a reconveyance, the plaintiff could not maintain ejectment. Closser v. McBride, supra, holds that the government title holder, having deposited sufficient money with the register in chancery may maintain ejectment against a tax title purchaser, who served an invalid notice of redemption, without having actually secured a reconveyance of the property.

Both the Powell and Closser Gases rely upon White v. Dunsmore, supra, as authority, but are to be distinguished in that the tax deeds involved in these suits were secured from the State prior to the effective date of the statute (1 Comp. Laws 1929, § 3466), and at a time when proper notice of reconveyance would ultimately have perfected the title of the tax deed purchaser if there was no redemption. Hence, the requirement of a deposit of the money necessary to secure a reconveyance was essential in order to determine the rights of the parties.

The same objection may be stated against the applicability of the following four cases which have been heretofore referred to:

In Huron Land Co. v. Lobdell-Churchill Manfg. Co., supra, it was held that ejectment will not lie against a purchaser of a tax deed in 1902 who is unlawfully in possession for failure to give notice of reconveyance where there is merely an uncompleted arrangement to buy in the tax title interest without a tender of the amount required.

A bill to quiet title based upon a tax deed of February 27, 1904, was filed in Bretz v. Hitchcock. Defendant filed a cross-bill for an accounting for unlawfully cutting and removing timber. The court decided that plaintiff could not have a decree because of improper service thus enabling defendants to redeem. But defendants could not have a decree because the time for redemption had not expired, and since the defendants had not in fact redeemed they were not entitled to a reconveyance.

In Dunn v. Papenfus, supra, it was decided that a bill to redeem from a tax title purchased on June 25, 1907 could be maintained upon payment of statutory sums together with such sums and interest thereon as had been paid as taxes by defendant since the purchase from the State where defendant failed to serve the owner of a reservation of timber rights with a notice to redeem.

In Burch v. Nippress, supra, the court holds that in an action to secure reconveyance of land sold for non-payment of taxes assessed from 1913 through 1916, plaintiffs were entitled to redeem upon paying or tendering the amount provided for by statute, improper notice of reconveyance having been served upon a mortgagee. A reading of the opinion in this case quite clearly indicates that it was decided at a time when the five-year period provided by 1 Comp. Laws 1929, § 3466, had not elapsed.

Since defendant has failed to give the required notice of reconveyance within five years from the date he became entitled to a tax deed, he is forever barred from asserting his title or claiming a lien on the land by reason of the tax purchase. It is therefore unnecessary for the plaintiff to deposit the amount of money set forth in the notice of reconveyance with the clerk of the court before proceeding with this suit in ejectment. Purchasers of tax titles must follow the statutory procedure and upon failure to do so their rights are forever barred. McVannel v. Pure Oil Co., 262 Mich. 518.

Reversed and remanded for entry of judgment for plaintiff, with costs of both courts.

'VViest, C. J., and Btjtzel, Sharpe, Potter, North, and McAllister, JJ., concurred with Chandler, J.