CURTSTIANCY J.
The bill in this case is filed against the ■ City of Lansing, and Lewis C. Loomis, their treasurer and collector, by fifty - nine separate owners of real estate situate adjacent to, and fronting on Cedar street, and the road in continuation thereof, in said city, to restrain the collection of a tax upon the lands of the several complainants along said street, for grading the same: the tax being charged to be illegal, and to constitute a cloud upon the titles of complainants.
The defendants demurred to the bill, and the demurrer was sustained in the court below.
The first ground urged in support of the demurrer is misjoinder of complainants, or multifariousness; they having no joint or common interest in the lands assessed.
There is great conflict in the.authorities upon this question, and a review of them would require a treatise. But in view of all the authorities, we do not understand that there is any general or inflexible rule on the subject, so far at least as relates to the joinder of parties complainant. So far as any rule can be said to exist, it is one of convenience only, and must depend for its application upon the circumstances of each particular ease. — Story’s Eg. PI. §530; [444]*444Adams Eq. 309, 310; Campbell v. Mackay, 1 Mylne and Craig, 603.
In. Kensington v. White, 3 Price, 164, seventy-two different underwriters, upon different policies of insurance, upon which complainants had been severally sued at law for their respective subscriptions, had joined in one bill, the object of which was to establish a defense which was common to all; the bill was sustained as not multifarious.
■ In Murray v. Hay, 1 Barb. Ch. 59, the bill was filed by two persons owning in severalty two dwelling houses, with no common interest in the property, against a defendant for a nuisance, which was a common injury to both, rendering the property of each less valuable. The bill was objected to as multifarious, but sustained by the court. And in Reid et al. v. Gifford, 1 Hopkins, 416, the bill was held not liable to this objection, though filed by several proprietors of several lands and mills, and of several parts of a natural water course to restrain a nuisance caused by an artificial channel cut by the defendant on his.own land, the effect of which was to draw off the water. This was held such common injury to all the complainants, as to authorize them to join in one bill, though the injury sustained by each was separate and distinct.
The principle involved in these cases can not be distinguished from that in the case before us. . While the property or pecuniary interests of the complainants were several, yet the action of the defendants, of which the bill complained and for which relief was sought, was identical as to all the complainants. So in the present case, though the interests of complainants, in the real estate upon which the tax is assessed, is several and distinct, yet the action of the defendants, the proceedings on their part from beginning to end, are identical as to all the complainants, and affect them all in the same manner. Their claims are entirely consistent with each other. — Adams Eq. 313.
[445]*445In such a case, the objection (if any can be recognized on the part of the defendants) for misjoinder of complainants, must rest upon very different grounds from a like objection for misjoinder of defendants having separate and distinct interests, and whose cases are unconnected with each other. In the latter case each defendant may well object to being involved in the contests or litigations of other parties, involving transactions with which he has no connection or concern.
But in the present case there is no such ground of objection on the part of the defendants, for their action, against which relief is sought, has been the same as to all the complainants, and the defendants have the same connection and concern with the whole subject of complaint as to each.
Bach complainant must, under the present bill, make out the same case, and no other, that he would have been bound to make upon a bill filed by him separately; and the same defense as to each complainant is open to the defendants, as if separate bills had been brought by each. It is therefore difficult to see in advance how the defendants can be embarrassed in their defense by the joinder of the complainants. And if they can offer no stronger objection to this bill than that fifty-nine separate suits should have been brought against them, instead of one, the bill ought to be sustained on the ground of preventing multiplicity of suits, and a needless multiplication of costs.
The substance of the complaint in the bill is the illegal imposition of the tax; and, if illegal as to one, it is equally so as to the other complainants; if valid as to one, it will be valid as to all. The proceedings, therefore, for the imposition of the tax will, in all probability, constitute the principal subject of litigation, and this is the same as to all.
It is true the title of each complainant may be disputed, and they may each be put to the proof. If any one of [446]*446them should then fail in making out his title, the bill would be dismissed as to him.
If, in the progress of the cause, it should become evident that such embarrassments must arise in consequence of the multiplicity of issues, or other complications growing-out of the joinder of all these complainants, as to overbalance the advantages to be derived from settling the rights of all in one suit, instead of separate suits by each, it is always competent for the court (if no mode of severance can he devised) to dismiss the bill on this account of their own motion.— Greenwood v. Churchill, 1 M. and, K. 546.
But we can not say, a priori, that any such practical difficulty is likely to arise from the joinder of the complainants. Indeed, we think such a result highly improbable. We can not, therefore, sustain the objection on demurrer.
The only remaining question is, whether, upon the facts stated in the bill, the action of the defendants, in assessing the tax, has been, illegal, and has resulted in casting a cloud upon the title of the complainants.
Now, without setting forth here in detail the various orders and amendments in reference to the grading of Cedar street, prior to September 6, 1866, it is sufficient to say that those prior orders, and the whole previous action of the council, whether valid or not, had-expended their force upon the tax assessed in November, 18C5, which was collected and paid, and the powers and functions of the commissioners appointed under the former orders had ceased and terminated.
The tax here in question, purporting to be based upon the resolution of the council of September 6, 1866, and the amendment of September 17, 1866, was a new and independent tax, extending over a different area from the prior taxes assessed under the former resolutions, and in no way connected with or supported by them. And as a condition precedent to the power of the council to order the raising of this tax, or to authorize commissioners to assess it, it was [447]
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CURTSTIANCY J.
The bill in this case is filed against the ■ City of Lansing, and Lewis C. Loomis, their treasurer and collector, by fifty - nine separate owners of real estate situate adjacent to, and fronting on Cedar street, and the road in continuation thereof, in said city, to restrain the collection of a tax upon the lands of the several complainants along said street, for grading the same: the tax being charged to be illegal, and to constitute a cloud upon the titles of complainants.
The defendants demurred to the bill, and the demurrer was sustained in the court below.
The first ground urged in support of the demurrer is misjoinder of complainants, or multifariousness; they having no joint or common interest in the lands assessed.
There is great conflict in the.authorities upon this question, and a review of them would require a treatise. But in view of all the authorities, we do not understand that there is any general or inflexible rule on the subject, so far at least as relates to the joinder of parties complainant. So far as any rule can be said to exist, it is one of convenience only, and must depend for its application upon the circumstances of each particular ease. — Story’s Eg. PI. §530; [444]*444Adams Eq. 309, 310; Campbell v. Mackay, 1 Mylne and Craig, 603.
In. Kensington v. White, 3 Price, 164, seventy-two different underwriters, upon different policies of insurance, upon which complainants had been severally sued at law for their respective subscriptions, had joined in one bill, the object of which was to establish a defense which was common to all; the bill was sustained as not multifarious.
■ In Murray v. Hay, 1 Barb. Ch. 59, the bill was filed by two persons owning in severalty two dwelling houses, with no common interest in the property, against a defendant for a nuisance, which was a common injury to both, rendering the property of each less valuable. The bill was objected to as multifarious, but sustained by the court. And in Reid et al. v. Gifford, 1 Hopkins, 416, the bill was held not liable to this objection, though filed by several proprietors of several lands and mills, and of several parts of a natural water course to restrain a nuisance caused by an artificial channel cut by the defendant on his.own land, the effect of which was to draw off the water. This was held such common injury to all the complainants, as to authorize them to join in one bill, though the injury sustained by each was separate and distinct.
The principle involved in these cases can not be distinguished from that in the case before us. . While the property or pecuniary interests of the complainants were several, yet the action of the defendants, of which the bill complained and for which relief was sought, was identical as to all the complainants. So in the present case, though the interests of complainants, in the real estate upon which the tax is assessed, is several and distinct, yet the action of the defendants, the proceedings on their part from beginning to end, are identical as to all the complainants, and affect them all in the same manner. Their claims are entirely consistent with each other. — Adams Eq. 313.
[445]*445In such a case, the objection (if any can be recognized on the part of the defendants) for misjoinder of complainants, must rest upon very different grounds from a like objection for misjoinder of defendants having separate and distinct interests, and whose cases are unconnected with each other. In the latter case each defendant may well object to being involved in the contests or litigations of other parties, involving transactions with which he has no connection or concern.
But in the present case there is no such ground of objection on the part of the defendants, for their action, against which relief is sought, has been the same as to all the complainants, and the defendants have the same connection and concern with the whole subject of complaint as to each.
Bach complainant must, under the present bill, make out the same case, and no other, that he would have been bound to make upon a bill filed by him separately; and the same defense as to each complainant is open to the defendants, as if separate bills had been brought by each. It is therefore difficult to see in advance how the defendants can be embarrassed in their defense by the joinder of the complainants. And if they can offer no stronger objection to this bill than that fifty-nine separate suits should have been brought against them, instead of one, the bill ought to be sustained on the ground of preventing multiplicity of suits, and a needless multiplication of costs.
The substance of the complaint in the bill is the illegal imposition of the tax; and, if illegal as to one, it is equally so as to the other complainants; if valid as to one, it will be valid as to all. The proceedings, therefore, for the imposition of the tax will, in all probability, constitute the principal subject of litigation, and this is the same as to all.
It is true the title of each complainant may be disputed, and they may each be put to the proof. If any one of [446]*446them should then fail in making out his title, the bill would be dismissed as to him.
If, in the progress of the cause, it should become evident that such embarrassments must arise in consequence of the multiplicity of issues, or other complications growing-out of the joinder of all these complainants, as to overbalance the advantages to be derived from settling the rights of all in one suit, instead of separate suits by each, it is always competent for the court (if no mode of severance can he devised) to dismiss the bill on this account of their own motion.— Greenwood v. Churchill, 1 M. and, K. 546.
But we can not say, a priori, that any such practical difficulty is likely to arise from the joinder of the complainants. Indeed, we think such a result highly improbable. We can not, therefore, sustain the objection on demurrer.
The only remaining question is, whether, upon the facts stated in the bill, the action of the defendants, in assessing the tax, has been, illegal, and has resulted in casting a cloud upon the title of the complainants.
Now, without setting forth here in detail the various orders and amendments in reference to the grading of Cedar street, prior to September 6, 1866, it is sufficient to say that those prior orders, and the whole previous action of the council, whether valid or not, had-expended their force upon the tax assessed in November, 18C5, which was collected and paid, and the powers and functions of the commissioners appointed under the former orders had ceased and terminated.
The tax here in question, purporting to be based upon the resolution of the council of September 6, 1866, and the amendment of September 17, 1866, was a new and independent tax, extending over a different area from the prior taxes assessed under the former resolutions, and in no way connected with or supported by them. And as a condition precedent to the power of the council to order the raising of this tax, or to authorize commissioners to assess it, it was [447]*447necessary, at least (saying nothing of the prior declaration required by section 9, to be entered on their minutes) that after ascertaining the estimated expense of such improvement, they should “declare, by an entry in their minutes, whether the whole, or what portion thereof, should be assessed to such owners and occupants of houses and lands to be benefitted thereby, specifying the sum to be assessed, and the portion of the city which they deemed to be benefitted by the improvement.” The whole smn to be raised and the portion to be assessed upon the property benefitted, could only be determined by the Council. The power to determine these matters could not be delegated to the commissioners. Their determination of these points was vital to the validity of the tax, without which no authority existed to assess it. This action was entirely omitted.
There was also an entire failure to comply with the provisions of the tenth section. The order to the commissioners (to say nothing of the other matters required to be inserted in it) should have directed the commissioners to make the assessment “upon all the owners and occupants of lands and houses within the portion or part so designated, of the amount of expense in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by making such improvement.”
No such order was made or. certified by the clerk as required. And no presumption, therefore, can be made that the assessments were made with any reference to the benefits or advantages to arise from the improvement.
These defects are not mere irregularities; but show a total failure to acquire the power or jurisdiction to assess this tax.
The tax was therefore clearly void and illegal; and the only remaining question is whether it constituted a cloud upon the title.
The tax roll having been delivered to the treasurer for collection, it will be seen that the tax is declared by the [448]*44817th section of the charter to be a lien upon the premises upon which the same was assessed. This lien, we thinlc, constitutes a cloud upon the title, which complainants are entitled to have removed in this proceeding; and this, without any reference to the question whether they had personal property from which the tax might have been made by levy and sale. We do not think it a sufficient answer to the relief asked, to say to the complainants that they might get rid of this cloud upon their title by paying the unauthorized and illegal exaction which creates the cloud. And though the lands can not be sold for the tax until returned unpaid, and the amount re-assessed by the alderman of the proper ward — Section 17 — yet the lien remains; and the taxes are to be returned and the premises sold or forfeited for non-payment thereof, as provided by law, for the nonpayment of ordinary city taxes — that is to say, they are to be sold by the Auditor General, and deeds given which are to be prima facie evidence of the regularity of all the proceedings, and of title in the purchaser. — See Palmer v. Rich, 12 Mich. 414.
The decree of the court below, dismissing the bill, must, therefore, be reversed, with costs, and the demurrer must be overruled, and the record remitted to the court below for further proceedings.
Cooley Oh. J. and Graves J. concurred.
Campbell J.
While I do not feel sure that the principle on which bills of peace to settle numerous identical rights, aggrieved by the same act, would have originally reached a case like the present, the practice is convenient, and I concur with my brethren in sustaining this bill and in giving relief. The rule can not apply where distinct issues of fact are presented, and whenever such a case arises it would render the suit multifarious, and bring it within the principle of Kerr [449]*449v. Lansing, decided at the last April term. But where no issue is made, except upon the legality of the acts complained of, and the case is so presented as to enable the court to do complete justice, one suit is probably as available as a greater number.