Napper v. Fitzpatrick

Michigan Supreme Court

Napper v. Fitzpatrick

102 N.W. 642, 139 Mich. 139, 1905 Mich. LEXIS 887

CourtMichigan Supreme Court

DecidedFebruary 27, 1905

DocketDocket No. 57

StatusPublished

Cited by3 cases

This text of 102 N.W. 642 (Napper v. Fitzpatrick) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Napper v. Fitzpatrick, 102 N.W. 642, 139 Mich. 139, 1905 Mich. LEXIS 887 (Mich. 1905).

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Opinion

Grant, J.

Plaintiff acquired title in fee from the original owner of the lands 'in controversy by the foreclosure of a mortgage. Taxes were not paid, and the defendants Brown and Cullen acquired the tax title upon the usual petition by the auditor general for the foreclosure of tax liens, and petitioned for a writ of assistance. To this the .plaintiff appeared and filed an answer, contesting the va[140]*140lidity of the decree and deed. The reason then assigned was that the decree was prematurely entered. The court entered a decree for the petitioners, granting the writ of assistance. Plaintiff appealed, and the decree was affirmed by this court. Brown v. Napper, 125 Mich. 117. Plaintiff afterwards instituted this action of ejectment, alleging another objection to the validity of the defendants’ deed, namely, that they did not pay certain other taxes which were then due and a lien upon the lands, and which should have been included in the purchase price, under Hughes v. Jordan, 118 Mich. 27, and Wilkin v. Keith, 121 Mich. 67.

The issue involved in the proceedings for the writ of assistance was the validity of the tax deed. Plaintiff should have interposed then all the objections he had to the validity of the deed. Its validity is res adjudicata by that decision. He is not now entitled to retry that issue on grounds which he may have since discovered. The case is expressly ruled by Peters v. Youngs, 122 Mich. 484.

Judgment is affirmed.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.

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Grant, J.

Plaintiff acquired title in fee from the original owner of the lands 'in controversy by the foreclosure of a mortgage. Taxes were not paid, and the defendants Brown and Cullen acquired the tax title upon the usual petition by the auditor general for the foreclosure of tax liens, and petitioned for a writ of assistance. To this the .plaintiff appeared and filed an answer, contesting the va[140]*140lidity of the decree and deed. The reason then assigned was that the decree was prematurely entered. The court entered a decree for the petitioners, granting the writ of assistance. Plaintiff appealed, and the decree was affirmed by this court. Brown v. Napper, 125 Mich. 117. Plaintiff afterwards instituted this action of ejectment, alleging another objection to the validity of the defendants’ deed, namely, that they did not pay certain other taxes which were then due and a lien upon the lands, and which should have been included in the purchase price, under Hughes v. Jordan, 118 Mich. 27, and Wilkin v. Keith, 121 Mich. 67.

The issue involved in the proceedings for the writ of assistance was the validity of the tax deed. Plaintiff should have interposed then all the objections he had to the validity of the deed. Its validity is res adjudicata by that decision. He is not now entitled to retry that issue on grounds which he may have since discovered. The case is expressly ruled by Peters v. Youngs, 122 Mich. 484.

Judgment is affirmed.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.

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Bluebook (online)

102 N.W. 642, 139 Mich. 139, 1905 Mich. LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/napper-v-fitzpatrick-mich-1905.

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