Youngs v. Peters

76 N.W. 138, 118 Mich. 45, 1898 Mich. LEXIS 949

• Court: Michigan Supreme Court
• Decided: July 18, 1898
• Status: Published

Opinion

Long, J.

Petition' for writ of assistance. Petitioner became the purchaser of the lands in controversy at the annual tax sale in 1896, under a decree made in the'circuit court, in chancery, for Marquette county. He petitioned for a writ of assistance; and the respondents, in answer to an order to show cause, replied :

. 1. That it was an attempt to eject respondents from their possession of the property without their having had their day in court before a jury, and in contravention of section 27 of article 6 of the Constitution of this State.

2. That the court of chancery acquired no jurisdiction to render a decree against the land, because no personal service of notice was given to the owner of the land, though he resided within said county, and that the law providing for publication of notice, and thus attempting to give the court jurisdiction, is in contravention of the fourteenth amendment to the Constitution of the United States.

3. That the decree had not been enrolled before sale.

4. That the county treasurer did not make a report of sale to the auditor general within the time prescribed by the tax law.

5. That the owner of the land had personal property from which the tax might have been collected.

On the coming in of the answer, the court below granted the order issuing the writ of assistance.

The questions raised by respondents in the first and second points above stated are fully discussed, and decided adversely to respondents’ contention, in Ball v. Ridge Copper Co., ante, 7.

"We think the proposition that no sale could be made until after enrollment has no force. The statute prescribes a time for the sale to take place, which precludes the application of 2 How. Stat. §§ 6648, 6649. Chancery Rule No. 24 cannot overrule the tax law, which provides when the deeds may issue. See, also, Hochgraef v. Hendrie, 66 Mich. 561.

The point that the county treasurer did not make his report to the auditor general in time is decided contrary to the view of counsel in Detroit Fire & Marine Ins. Co. v. Wood, ante, 31. In the present case it appears that the time taken by the treasurer was not unreasonable.

The" order below must be affirmed.

The other Justices concurred.