source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    GUENTHERODT v. ROSS.
    1. Evidence — Trespass Quare Clausum — Adverse Possession-Former Judgments — Admissibility.
    In trespass quare clausum, in which plaintiff contended that he was the owner of the premises in dispute, by record title, and, also, that he had been in the undisputed occupancy of them, under a claim of title, for more than the statutory period, it was immaterial that the court excluded evidence of judgments showing an interruption of his claimed adverse possession, where the jury found that he had the record title.
    3. Same — Plats Referred to in Deeds — Boundaries.
    In trespass quare clausum, in which the question of the true location of a boundary line was involved, a plat which described plaintiff’s lot, and which was referred to in the conveyances down to him, was admissible to identify the property conveyed, and to show the extent of plaintiff’s claim.
    3. Same — Deeds—Privity of Estate.
    After receiving the plat in evidence, it was not error for the court to exclude a deed of another lot referred to in the plat, which deed stated that the depth of such lot was less than shown in the plat, where no privity of estate was shown as to such lot on the part of either of the parties to the suit.
    ■ Error to Wayne; Erazer, J.
    Submitted June 9, 1899.
    Decided July 11, 1899.
    Trespass quare clausum fregit by Frederick Guentherodt against Edward H. Ross and John Ross. From a judgment for plaintiff:, defendants bring error.
    Affirmed.

      John 6r. Hawley, for appellants.

      James H. Pound, for appellee.
   Montgomery, J.

This is trespass quare clausum, certified to the circuit court from justice’s court on a plea of title. The question concerns the true location of a boundary line. The plaintiff on the trial contended, and offered testimony tending to show — First, that he was actually the owner of the premises in dispute, by record title; second, that he had been in the undisputed occupancy under a claim of title for more than the statutory period. Defendants offered in evidence proceedings in justice’s court in two different suits brought against plaintiff by the defendant Edward H. Ross within a period of 15 years before the present suit was instituted,— the one in trespass guare clausum, and the other in trespass vi et armis, — and offered to support these records by parol testimony that it was determined in each of these cases that the defendant Edward H. Ross was in possession of the land in dispute in this case within such period. This testimony was excluded on the ground that a former adjudication must be pleaded. Error is assigned on this ruling.

It is not contended that these adjudications determined the question of title, but it is insisted that it was determined that at a certain date defendant Edward was in pass lawful possession of the locus in quo, and that these records were admissible in evidence of the fact. In view of the special findings of the jury, we do not find it necessary to pass upon the effect, of these former suits. Two questions were submitted to the jury, and each answered in the affirmative: “ Does Mr. Ross’ fence encroach upon the true line of the plaintiff, as established by plats and records ? Does said fence encroach upon the line of the plaintiff’s land established by adverse possession?” As the evidence offered only bore upon the fact of possession at a certain date, the only effect would have been to dispute plaintiff’s possession at that time, and thus show an interruption of his claimed adverse possession. This testimony, if admissible, would not in any way have tended to show that plaintiff had not the record title. The jury has found that he had, presumptively on sufficient testimony.

Error is assigned upon a ruling admitting in evidence a plat in which plaintiff’s lot is described. Plaintiff’s title was derived from one in earlier possession of the lot, and the conveyances down to- him referred to the plat. It is not clear how else the property conveyed could have been identified. The plat was admissible for this purpose, as well as to show the extent of plaintiff’s claim of title under which he occupied.

The plaintiff claimed title to lot SO, section 49, Guoin farm. Defendant Edward claimed title to lands adjoining on the rear of lots 19, 20, and 21. On the trial,- defendants offered in evidence a deed to lot 21 made by one Autretsch to George H. Parker, in which the depth of lot 21 was stated to be less than is shown on the plat; but no privity of estate was shown as to this lot, either on the part of plaintiff or defendants. The court rightly excluded this deed.

Judgment affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    GIBSON v. COMMISSIONER OF STATE LAND OFFICE.
    Tax Homestead Lands — Internal Improvements — Constitutional Law.
    Act No. 423, Local Acts 1897, appropriating to the improvement of Maple river certain lands deeded to the State for homestead entry under the general tax law (Act No. 206, Pub. Acts 1893, §§ 127-134), and providing for the imposition of a tax for such improvement if the lands should prove inadequate, is repugnant to article 14, § 9, of the Constitution, which forbids the State from being a party to, or interested in, any work of internal improvement, except in the expenditure of grants to the State of land or other property; a deeding to the State under the tax law not being a land grant, within the meaning of the Constitution.

      Mandamus by Alfred S. Gibson to compel William A. French, commissioner of the state land office, to issue to relator a state tax homestead certificate.
    Submitted June 22, 1899.
    Writ granted July 11, 1899.

      Kelly 8. 8earl and John T. Mathews, for relator.

      Horace M. Oren, Attorney General, for respondent:
   Hooker, J.

Sections 127 to 134, inclusive, of the tax law (Act No. 206, Pub. Acts 1893), provide for the setting apart of certain lands which have been bid in to the State for delinquent taxes, for the purpose of entry and purchase for homesteads. Certain lands were so designated, and the relator made application to enter a tract. The respondent refused to permit this, upon the ground that the parcel had been appropriated to the improvement of Maple river, under Act No. 423, Local Acts 1897. The relator applies for a mandamus to compel such entry by respondent. He attacks the act last cited as unconstitutional, upon several grounds.

Section 9, art. 14, of the Constitution, rpads as follows:

“The State shall not be a party to, or interested in, any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the State of land or other property.”

That this is a work of internal improvement can admit of no question. It is within the case of Wilcox v. Paddock, 65 Mich. 23. This being so, the State cannot be a party to such work, except to the extent of expending grants to the State of land. It has been held that it is contrary to the policy of the State to permit the inhabitants to be taxed for such works, yet this act provides for nothing else. The lands that are sought to be appropriated are not lands granted to the State, except in a most technical sense; for, though the auditor general does execute a deed to the State, he holds them in the first instance for the State, which has purchased them for delinquent taxes. They represent the State’s lien upon them for taxes, and indirectly the act thus seeks to apply taxes to such, a purpose; for, if the land is to be thus applied, the deficiency arising from the failure of the former owner to pay the taxes for which the lands were sold will have to be met by taxation. Again, the act provides for the imposition of a tax for such improvement if the lands prove inadequate. We think it clearly unconstitutional, and the writ will issue as prayed.

The other Justices concurred.


author: Moore, J.

text:
    HAVEN v. OWEN.
    1. Taxation — Decree of Sale — Collateral Attack.
    A decree for the sale of land for taxes, fair upon its face, cannot be impeached in a collateral proceeding (e. g., an action of ejectment based upon a deed for such taxes) by showing that the figures in the tax record indicating the amount decreed against the land were inserted by an employé in the county treasurer’s office after the decree had been signed by the court.
    2. Same — Order of Hearing — Validity.
    The court may substitute a valid order fixing the time for hearing the auditor general’s petition in a tax proceeding for a former void order setting the time.
    Error to Ingham; Wisner, J., presiding.
    Submitted January 6, 1899.
    Decided July 11, 1899.
    Ejectment by Harry J. Haven against Ellen Owen and another. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Harris E. Thomas (G. W. Nichols, of counsel), for appellant.

      T. E. Barkiuorlh, for appellees.
   Moore, J.

This is an action of ejectment. Plaintiff’s title is a tax deed for the taxes of 1890, 1891, and 1893. Defendants were allowed to attack by parol the decree for a sale of the lands for the taxes of 1890 and 1891 by showing that in the decree, when entered, was a blank under the heading “Amount Decreed against Lands,” which was, subsequent to the signing of the decree by the judge, filled out by an employé in the office of the county treasurer. If this was made to appear in the original proceeding, either by a petition to set aside the decree or by a bill of review, it would be a fatal defect. Morgan v. Tweddle, 119 Mich. 350; First Baptist Church v. Roberts, 120 Mich. 704. It is claimed, however, that in a collateral proceeding an attack by parol upon a decree fair upon its face cannot be made. This is a collateral proceeding. Peninsular Savings Bank v. Ward, 118 Mich. 87. Counsel for the plaintiff contend for the following rule • “ The records of a court, of record are of such pre-eminent authority that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall a.ny plea, or even proof, be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself; that is, upon bare inspection whether there be any such record or no; else there would be no end of disputes,”— citing 3 Bl. Comm. 24, 331; 9 Bac. Abr. 556; Starkie, Ev. 317; 1 Greenl. Ev. §§ 19, 538.

In Koren v. Roemheld, 7 Ill. App. 646, the court says:

“The record, when tried by itself, was complete in every particular. While a stranger to a judgment may, if injuriously affected thereby, collaterally impeach such judgment by showing that the court had no jurisdiction of the person of the defendant in such judgment or of the subject-matter, or that it was obtained by fraud and collusion between the parties to it, * * * we are of opinion that where there is jurisdiction of the person and subject-matter, and the judgment is not the result of fraud and collusion between the parties to it, and it is material only to establish the fact of such judgment and those legal consequences which result from the fact, the record must be regarded as conclusive, even as to strangers. * * * The object of these rules is to give stability and security to judgments, decrees, and sentences, when made by courts having jurisdiction of the person and subject-matter. They are, therefore, founded in, and supported by, a sound public policy, which demands of the courts an inflexible adherence to them.”

See, also, Van Fleet, Coll. Attack, §§ 349, 526; Black v. Ross, 37 Mo. App. 250; Phillips v. Lewis, 109 Ind. 63; Watts v. Bublitz, 99 Mich. 586; Scotten v. City of Detroit, 106 Mich. 564; Allured v. Voller, 112 Mich. 357; Miller v. Smith, 115 Mich. 427, and the many cases there cited. We think the court erred in permitting the decree to be attacked by matter dehors the record.

The decree in relation to the tax of 1893 was held invalid because the chancery journal showed that on August 10, 1895, an order was made fixing the hearing of tax cases for the opening of court on the 33d day of September; that on September 17th an order was made revoking the order of August 10th, and fixing the time for hearing on the petition of the tax cases for November 4, 1895. The orders themselves are not returned with the record, nor are the petitions upon which they were based, if any such petitions were filed. It may have been made io appear to •the court that the first order was a void one, and that the second order was necessary. Section 66 of the tax law of 1893 (Act No. 306, Pub. Acts 1893) contemplates that the court shall make such orders as are necessary to facilitate the proceedings. We do not think it can be said that, if an order is made that is void, the court cannot make a valid order to take the place of the void order, if the valid order is made in time, and follows the requirements of the statute.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


text:
    CHIERA v. McDONALD.
    1. Landlord and Tenant — Default in Rent — Summary Proceedings — Acceptance of Rent Pending Suit — Waiver.
    Where, after defendant’s appeal from the judgment of a commissioner in summary proceedings to recover the possession of land for nonpayment of rent, complainant accepts from defendant a payment to “ ax>ply on account of rent,” he does not thereby waive the right to prosecute the suit, if the amount paid is less than that due at its commencement.
    2. Same.
    Nor does complainant waive any rights by accepting, pending the suit, payments upon the current rent, where such payments were permitted defendant, as a matter of grace, as a condition to the court’s staying an order dismissing the appeal for failure to file a sufficient bond.
    Error to Wayne; Hosmer, J.
    Submitted June 22, 1899.
    Decided July 11, 1899.
    Summary proceedings' by Gabriel Chiera against John H. McDonald to recover the possession of land. From a judgment for. complainant on verdict directed by the court, defendant brings error.
    Affirmed.

      Edward S. Qrece and T. E. Tarsney, for appellant.

      E. J. Cochran {Alex. D. Fowler, of counsel), for appellee.
   Montgomery, J.

This is a summary proceeding to recover possession of lands for nonpayment of rent. The proceeding was brought before a circuit court commissioner. Complainant recovered, and defendant appealed. At the time of the hearing before the commissioner, the sum of $300 rent was due. After the appeal was made, the complainant made a motion for a new bond, based upon a showing that the sureties on the bond first filed were insufficient. An order nisi dismissing the appeal was made, with a condition for a new bond. From time to time the order was stayed, on defendant’s motion, on condition that defendant pay into court certain sums as rent; the amount of these payments aggregating $675. There had also been paid, November 12, 1897, before these' orders were made, $100, to apply on account of rent. There remained due and unpaid at the date of the hearing the sum of $740. The circuit judge directed a verdict for the complainant, and defendant brings error.

The contention is that complainant has waived the default of defendant by subsequent acceptance of rent. The first payment of $100 was not applied, when made, on rent accruing after the default, and the court properly applied it to rent first accruing. As to payments made by order of the court, it is clear that these payments were permitted, and the time extended, as a matter of grace. It is clear that neither - party intended that the receipt of the rent, under these circumstances, should be treated as a waiver of any right which complainant had.

Judgment affirmed, with costs.

The other Justices concurred.


text:
    LEDYARD v. AUDITOR GENERAL.
    Tax Sales — Auditor General’s Petition-UDelay in Filing-Order oe Hearing — Validity oe Degree.
    Under section 62 of the tax law of 1893 (Act No. 206, Pub. Acts 1893), providing that the order of hearing on the auditor general’s petition for the sale of delinquent lands (publication of which petition and order is by section 66 made equivalent to personal service) shall contain a provision that persons desiring to contest the lien of the State shall file their objections thereto on or before the first day of the term at which the petition is to be heard, a decree of sale is void where the petition was not filed until after the beginning of the term at which the decree was entered.
    Appeal from Wayne; Carpenter, Frazer, and Hosmer, JJ.
    Submitted January 6, 1899.
    Decided July 11, 1899.
    Petition by Matilda C. Ledyard against Roscoe D. Dix, auditor general, and Harry E. Culverwell, to set aside a tax sale. From a decree for petitioner, defendants appeal.
    Affirmed.

      Russel & Campbell, for petitioner.

      Fred A. Maynard, ex-Attorney General, and Avery Bros. & Walsh, for defendant auditor general.

      Cyrus A. Hovey, for defendant Culverwell.
   Moore, J.

Petitioner was tbe owner of real property in Detroit valued at about $15,000. She had sold the property on contract to George W. Robinson, and at the time of the sale of the property for taxes, as hereinafter stated, there was due upon the contract $7,500. Under the terms of the contract, the taxes were to be paid by Robinson. In 1893 there was levied and assessed upon the property the sum of $23.20, state and county taxes for that year. Under the contract, it was the duty of Robinson to pay them. He neglected to do so, and the property was advertised for sale; and the petitioner, discovering that the taxes were unpaid and that the property was advertised for sale, notified Robinson, and requested him to pay them. Subsequently, and within a few days of the time when the property was to have been sold, Robinson notified the petitioner that he had paid the taxes; and thereafter she paid no further attention to the matter, until in the month of April, 1897, after the time for redemption had expired, when it was discovered that said taxes had not been paid, but that the property had been sold upon the 2d day of December,-1895, and that R. D. Bradley had become the purchaser thereof, receiving certificate of sale No. 1570 therefor. This certificate ,was subsequently assigned to defendant Culverwell, who now holds the same. On the 15th day of April, 1897, petitioner applied to the auditor general to set aside and cancel the sale, offering to pay the tax. This petition was denied. No deed of the property has been executed to the purchaser by the auditor general. The petitioner thereupon filed this petition, offering to pay the tax and costs, and asking that the sale be set aside on equitable grounds, and also because the record shows that the proceedings had are void for want of jurisdiction. The court below granted the prayer of the petition. The defendants have brought the case here by appeal.

Many reasons are assigned in the petition which it is said invalidate the sale. We shall discuss but one of them. The petition of the auditor general, praying for a sale of the land in controversy, was made September 25, 1895. The circuit judge made an order fixing the date of hearing upon this petition for the 9th day of November, 1895. The decree was entered November 18, 1895. The terms of court in Wayne county commenced January 3d, April 4th, June 6th, and September 12th. It will be seen that the petition was not filed until after the September term began. The order fixed a date in the September term for the hearing. Section 62, Act No. 206, Pub. Acts 1893, prescribes the form of the order of hearing which shall be made by the circuit judge, which order states when the petition shall be brought on to be heard, and contains this language:

“All persons interested in such lands, or any part thereof, desiring to contest the lien claimed thereon by the State of Michigan for such taxes, interest, and charges, or any part thereof, shall appear in said court, and file with the clerk thereof, acting as register in chancery, their objections thereto, on or before the first day of the term of this court above mentioned, and, in default thereof, the same will be taken as confessed, and a decree will be taken,” etc.

Section 66 provides that the publication of the order and petition shall be equivalent to a personal service of notice. The same section provides that the court shall give precedence to the hearing of the petition over all other business. Section 70 provides that on the first Monday of December the county treasurer shall commence the sale of the lands mentioned in the decree.

It is apparent that section 62 gives the right to a property owner to have until the commencement of the next term after the petition is filed to make his contest. It is an axiom of law that a litigant is entitled to his day in court. Ordinarily he is brought into court, when he is a resident of the jurisdiction, by personal service. Section 66 undertakes to bring him in by substituted service. We upheld this provision of the statute in Muirhead v. Sands, 111 Mich. 187, where this language is used: •

“The statute makes the publication the equivalent of personal service, and it is therefore the duty of the owner to watch the proceedings provided for by the statute for the foreclosure of the lien, and interpose any objection he may have to the validity of the tax. * * * Under the law of 1893, no personal service is required. The notice by publication is notice to all landowners within the county.”

The record shows that on June 20th the auditor general designated the .Detroit Tribune as the paper in which the order and petition should be published. The taxpayer is presumed to know the law. If he does, he knows the provisions of section 62. He also knew the next term of the Wayne circuit court, after the order of designation of the newspaper was made, would commence early in September. If he watches the columns of the paper designated as the one in which the notice of hearing is to be published, until the commencement of the term of court, and no notice of the hearing of tax cases for that term is published, has he not a right to assume that no hearing will be had until a subsequent term? We think that question must be answered- in the affirmative. If the statute provides the manner of a substituted service, and that it shall stand in the place of a personal service, the provisions of the statute must be substantially complied with. It is urged that to so hold in this case is to compel the State to carry the taxes of the wealthy county of Wayne for another'year. It is an answer to that argument to say there was ample time for the auditor general, after June 1st, to prepare his petition, and have the hearing fixed at the opening of the September term. . .

The decree of the court below is affirmed.

The other Justices concurred.


text:
    LAFLER v. FISHER.
    1. Intoxicating Liquors — Civil-Damage Suit — Evidence—Instructions.
    A charge, in a civil-damage suit, that plaintiff was not entitled to a verdict unless defendant sold liquor to deceased at a time when he was intoxicated, sufficiently covered a requested instruction that damages could be recovered only in case an unlawful sale was proved.
    2. Same — Sale to Intoxicated Person — Exemplary Damages.
    The selling of liquor to a person with knowledge that he is intoxicated justifies an award of exemplary damages, under 3 How. Stat. § 2283e3, to the wife of such person, where his death is caused by the intoxication; it not being necessary, in order to render the seller liable, that he should have been able to anticipate the particular injury which resulted.
    3.. Same — Estimate of Damages.
    Where plaintiff in a'civil-damage suit shows injury to her means of support, and gives evidence from which the extent of the injury may approximately he ascertained, the jury may estimate and award to her damages, without an accurate statement’s being made of the contributions of which the injury deprived her.
    4. Same — Intoxicated Person — Definition.
    Defendant in a civil-damage suit has no cause to complain of an instruction defining an intoxicated person as one whose senses are obviously destroyed or distracted by the use of intoxicating liquors.
    Error to Monroe; Kinne, J.
    Submitted June 7, 1899.
    Decided July 11, 1899.
    Case by Martha Lafler against Edward L.. Fisher, a saloon keeper, and his bondsmen, impleaded with William B. Carman, another saloon keeper, and his bondsmen, under the civil-damage act. From a judgment against defendant Fisher and his bondsmen, they bring error.
    Affirmed.

      Watts, Bean & Smith (Landon & Lockwood and James W. Helme, Jr., of counsel), for appellants.

      C. A. Golden and John O. Zabel, for appellee.
   Hooker, J.

The plaintiff’s husband is said to have met his death by reason of intoxication. The defendants are two saloon keepers and their respective bondsmen. A judgment was recovered against defendant Fisher and his bondsmen under the statute, and they have appealed. But few of the errors assigned are discussed in the brief of the appellants.

It is said that certain requests to charge, in effect stating that damages could be recovered only in case an unlawful sale was proved, were denied. The court repeatedly told the jury that the plaintiff was not entitled to a verdict unless the respective defendants, or their principals, were shown to have sold liquor to the deceased at a time when he was intoxicated. Such a sale would be unlawful, and we think the point was sufficiently covered.

It is contended that there was no basis for exemplary damages, and that it was error to permit the jury to find such. The instruction given was as follows:

“If, under the evidence and the instructions that I have given you, you find that the plaintiff is entitled to a verdict, she will be entitled to recover such damages as by the evidence it appears that she has suffered by reason of the death and loss of her husband. In estimating these damages, you should consider the loss of her means of support, her mental suffering, and the loss of her husband’s society and companionship, so far as the same may have been established by the evidence, and award .to the plaintiff such a sum as, in your sound judgment and discretion, you find will be a fair compensation for her loss and injuries.
“Something has been said, I think, upon the subject of exemplary damages. I do not think any damages should be allowed in the nature of mere punishment to the defendants. If any 'damages beyond actual damages are allowed, they should be based upon the idea of an aggravated injury to the feelings and sense of wrong to the plaintiff by reason of having sold these liquors to Mr. Lafler when he was intoxicated. No mere captious or punitory damages should be allowed, and, if any exemplary damages are allowed by you, they should be fixed and arrived, at by the exercise of a careful discretion and discrimination.”

There was testimony tending to show that liquor was sold to the deceased by the defendants while he was intoxicated, and that he soon after met his death, which, under the statute, authorizes the recover of exemplary damages, if the jury find that his death was caused by such intoxication. See Weiser v. Welch, 112 Mich. 137. We think there was evidence from which the jury might find that the liquor was sold with knowledge of the intoxicated condition of the déceased, and was therefore wanton. It is not necessary that the wrong-doer should be able to anticipate the particular injury to make him liable to damages therefor.

The plaintiff offered testimony tending to show that the husband earned about $700 a year, that he had a farm, and that he supported her well. She did not show the exact amount that he contributed, and counsel urge that there was no way for the jury to tell how much she received. We think there was sufficient to enable the jury to estimate her damages. In actions of tort for personal injury, the circumstances are shown, and the jury determine the amount of injury. We think the same rule applies here. It is, of course, necessary to show injury to her means of support, but it is not to be expected that an accurate statement of what had been furnished could be shown, and, in our opinion, the statute does not contemplate it. 3 How. Stat. § 2283e3.

The court instructed the jury in regard to what is meant by “intoxication” as follows:

“I want to say a word to you in reference to what may be deemed an ‘intoxicated person,’ within the meaning of the statute. When it is apparent that a person is under the influence of liquor, or when his manner is unusual or abnormal, and his inebriated condition is reflected in his walk or conversation, when his ordinary judgment and common sense are disturbed, or his usual will power is temporarily suspended, when these or similar symptoms result from the use of liquors, and are manifest, then, within the meaning of the statute, the person is intoxicated, and any one who makes a sale of liquor to such person violates the law of the State. It is not necessarj- that the person should be so-called ‘dead drunk,’ or hopelessly intoxicated; it is enough that his senses are obviously destroyed or distracted by the use of intoxicating liquors.”

We think that the defendants have no cause for complaint upon this subject.

We find no error, and the judgment is affirmed.

The other Justices concurred.


text:
    ROBERTS v. LOXLEY.
    Appeal — Tax Sales — Validity.
    Where on the hearing of a petition for a writ of assistance by the holder of a tax deed, and of a counter petition by the original owner to set aside the tax decree, the court refused to receive proofs offered by onetof the parties, and the record on appeal taken by such party was insufficient to enable the Supreme Court to dispose of the case upon the merits, the order of the court below was vacated, and the case remanded, with directions to take such proofs.
    Appeal from Bay; Maxwell, J.
    Submitted April 4, 1899.
    Decided July 11, 1899.
    Petition by Clinton Roberts and George O. Crane for a writ of assistance under a tax deed, and counter petition by John E. Loxley to set aside the decree of sale. From an order vacating the decree, petitioners Roberts and Crane appeal.
    Reversed.

      Black & Broiun, for appellants.

      W. J. McCormick (Fatio Colt, of counsel), for appellee.
   Moore, J.

This case is here in a very unsatisfactory condition. The petitioners applied for a writ of assistance to get possession of lands which they had purchased of the State, and which Mr. Loxley claimed to own. The day of hearing was fixed, and notice of hearing served upon Mr. and Mrs. Monroe, who it is claimed were tenants of Mr. Loxley. Before the application for a writ of assistance was heard, Mr. Loxley filed a petition in which he claimed the tax proceedings were void, and prayed to have the decree set aside. An order was made staying all proceedings on the application for a writ of assistance, and giving the petitioners Roberts and Crane 10 days in which to answer Mr. Loxley’s petition. They filed an answer to the petition, and served notice that upon the hearing they would take proofs in open court. It is their claim that upon the hearing they desired and offered to put in proofs which would support the allegations of the original petition, and disprove the averments of Mr. Loxley’s petition, but the trial judge refused to allow them to offer any proof whatever, and vacated the original tax decree. In settling the case for this court, the trial judge returned:

‘ ‘ There is a rule in the circuit court of this county, in chancery, that the petition and answer and other pleadings in tax cases, the facts set forth and sworn to, and not denied by either party, are to be taken as admitted as true. The counsel in the case discussed the several matters before me, and from certain of the records from the county 'treasurer’s office that were present in court, but no oral evidence was given in support of either of the petitions. Taking the undisputed facts as admitted, under the rule mentioned, I made the decree in the case. Attached to this finding, and made a part of it, are copies of the several petitions and answer, in order to save the great expense of the copying and printing of voluminous records of this whole case.”

No return is made to this court in this case of the records from the county treasurer’s office. We have, as the record, simply the pleadings.

It is the claim of the petitioners that, upon the case made by the pleadings, they are entitled to the writ of assistance. We cannot agree with counsel. Their petition shows that the petition of the auditor general for an order of hearing was filed on October 3, 1893; that April 30, 1897, they succeeded to the rights of the State, which it obtained by bidding in the lands pursuant to a decree made November-22, 1893. The petition is silent as to all that occurred between the filing of the petition and the obtaining of the decree. There is nothing in the petition to show that this decree was not rendered at the same term of court which was in session when the petition was filed, bringing it within the case of Ledyard v. Auditor General, ante, 56. We may take judicial notice of the fact that there was no regular term of court intervening between the filing of the petition and the making of the decree, but we cannot say there was no special term appointed for the hearing of the tax cases, which might take the case out of the decision in .Ledyard v. Auditor General. The petitioners were entitled to have the testimony offered by them received in evidence, so that such a record could be made that this court could dispose of the case upon the merits. Inasmuch as we cannot do this upon the record as it stands, the decree of the court below is vacated, and the case remanded to the court below, with directions to hear the case upon proofs as well as the pleadings. The petitioners will recover costs of this court.

The other Justices concurred.


text:
    WILKIN v. KEITH.
    1. Tax Sales — Description of Lands — Sufficiency.
    A description of land, in a proceeding to enforce the collection of delinquent taxes, as situate in “H.’s plat of the city of S.,” is sufficient, though it is situated in what the records describe as “H.’s plat of East S.,” the cities of S. and East S. having been consolidated.
    2. Same — Auditor General’s Petition — Time of Piling — Publication — Designation of Newspaper.
    The filing of the auditor general’s petition in a tax proceeding need not necessarily precede the designation by him, under section 63 of the tax law, of the newspaper in which the petition and order of hearing are to be published.
    3. Same — Publication in Supplement.
    Publication of notice of a tax sale in a’supplement to a newspaper is a sufficient publication in the newspaper. Mann v. Carson, 120 Mich. 631, followed.
    4. Same — Validity of Decree — Collateral Attack.
    A decree for the sale of land for taxes cannot be attacked, in a - suit to set aside the deed issued thereunder, by testimony that the figures in the column of the tax record headed “Amount Decreed against Lands” were inserted by an employé in the county treasurer’s office subsequent to the signing of the decree.

    5. Same — Second Decree.
    A valid decree in a tax proceeding maybe substituted for a former decree which was prematurely entered.
    6. Same — Irregularities in- Proceedings.
    A tax sale is not void because there are no calendar entries in the proceeding, no entry of appearance or default, and no enrollment of the decree.
    7. Same — Conclusiveness of Decree.
    A valid decree in a tax proceeding forecloses defenses such as that the assessing officer did not assess mortgages, that the treasurer made no attempt to collect the tax, and that the amount levied was excessive.

      8. Same — Purchase of State Lands — Payment of Tax Liens.
    Section 84 of the tax law, making it a condition to a purchase of state tax land that there be payment of all taxes remaining a lien thereon, extends to taxes not yet returned by the collecting officer. Hughes v. Jordan, 118 Mich. 27, followed.
    9. Same — Where Payment Made.
    The payment in such case need not be to the local officer, however, but an amount sufficient to cover the unpaid taxes may be deposited with the auditor general, thereby relieving the applicant from the risk of making a voluntary payment of another’s taxes.
    10. Same — Insufficient Application — Deed—Intervening Rights.
    An application to purchase state tax land, unaccompanied by an amount sufficient to pay all taxes then constituting a lien thereon, is not rendered effectual by the subsequent payment of such taxes by another, so as to authorize the after-execution of a deed to the applicant, where there was in the meantime another application to purchase the land.
    11. Same — Remedies.
    Where a deed of state tax land is. denied to one entitled to it, and given to another, the former may maintain- a bill to set the deed aside; the remedy by application to the auditor general for a certificate of ei;ror, prescribed by section 98 of the tax law, being exclusive only so far as it applies to sales in the original proceeding to declare the tax delinquent.’
    Appeal from Saginaw; Snow, J.
    Submitted February 6, 1899.
    Decided July 11, 1899.
    Bill by Anna M. C. Wilkin against George Keith, William Keith, and Boscoe D. Dix, auditor general, to set aside a tax deed. From a decree for complainant, defendants Keith appeal.
    Affirmed.

      WeadocJc & Purcell (McDonell & Hall, of counsel), for complainant.

      M. V. & B. A. Montgomery (Humphrey & Grant, of counsel), for appellants.

       See, also, Haven v. Owen, ante, 51.

   Hooker, J.

The complainant, a resident of New York, was the owner of a mortgage of $15,000 upon premises in Saginaw used for a hotel and store. In 1895 she foreclosed the mortgage in chancery, and purchased the property at foreclosure sale, the deed being recorded October 10, 1896. The property was sold to the State for the taxes of 1893 in December, 1895. In 189? the auditor general deeded the title of the State to George Keith, who after-wards conveyed an interest to William Keith, his son. The bill is filed to set aside the auditor general’s deed and remove the cloud from complainant’s title, to compel the auditor general to refund to George Keith and his assign the amount received for said deed, and to issue to the complainant a certificate of error nullifying said deed. It prays, further, that it may be decreed that said premises have been redeemed by the complainant by the payment of certain moneys alleged to have been paid for her to the county treasurer upon the taxes of 1893, 1894, and 1895.

On January 26, 1897, Eugene Wood, of Lansing, called upon Mr. Weadock, complainant’s solicitor in the foreclosure proceedings, at his office in Saginaw, with a list of delinquent lands subject to purchase, and stated that he wanted to interest Saginaw people in purchasing the same. He called to consult a map in the office, and, after doing so, went out with a Mr. Plummer, but they returned later, and directed Mr. Weadock’s attention to the property in question, and stated that there was a large hotel on it, known as the “Aldine.” Weadock informed Wood that he did not wish him to buy the property, for there was a mistake, or the taxes would have been paid, and told Wood that he was willing to pay him if he would retain his information until he (Weadock) could give the complainant a chance to pay them. Mr. Wood agreed to do this for $50, which Weadock promised to pay. On January 30th, complainant’s brother received a draft, and went to the offices of the treasurers of Saginaw county and city, and discharged all taxes for the years 1893, 1894, 1895, and 1896, and took receipts therefor.

On January 28, 1897, George Keith, of Lansing, made application to the auditor general to purchase these premises. At the same time he delivered to the auditor general two certificates of deposit issued by local banks, for $500 each, and a check for $10, made by the auditor gen eral, all being by him properly indorsed. On February 10th, Keith received a deed of the premises from the auditor general. Keith obtained his information that the property was held by the State from one Hasse. The bill was taken as confessed against the auditor general. The Keiths answered. The decree of the circuit court was in favor of the complainant, but required her to reimburse Keith. Defendants Keith have appealed.

Numerous legal questions are raised upon the tax proceedings. A number of them pertain to the regularity of the proceedings through which the State acquired its title. Some are jurisdictional, and some are not. It is claimed that the land was not included in the petition or decree. This point involves a question of description. • The land in question is situate in what the records describe as “Hoyt’s Plat of East Saginaw,” while in the tax proceedings it is described as situate in “Hoyt’s Plat of the City of Saginaw, according to the plat thereof.” The cities of Saginaw and East Saginaw, lying, respectively, upon the west and east sides of the Saginaw river, were consolidated some years ago under the name of Saginaw, since which time the name East Saginaw has been dropped, in tax proceedings relating to land east of the river, and the name Saginaw used. It is claimed that this is misleading, but we are not impressed by the suggestion. This description would be sufficient in a deed, and the owners of property on the east side cannot be supposed to be ignorant that there is no longer a city of East Saginaw.

It is said that the proceedings were void because the State held the title to this land under a purchase for the tax of 1892 when the petition was filed upon the tax of 1893. This appears to be an error. Our understanding is that the 1892 tax was paid on July 9, 1895. The petition was dated September 12, 1895, and filed September 19th. Both facts appear from the complainant’s brief.

The order of publication was published in a supplement accompanying the regular edition of the Valley News, a newspaper published in Saginaw. The auditor general designáted this paper as the one in which these proceedings should be published. In accordance with the practice of his office, he selected the papers throughout the State, and filed his order designating the same on June 26th. It is contended that this was premature, and that it could not lawfully be made before the petition was filed. We see nothing in the tax law that requires this construction, and the practice contended for would be an inconvenient one. In the case of Mann v. Carson, 120 Mich. 631, publication in a supplement was held to be a compliance with the law.

Counsel assert that the decree is shown to be void. This claim is based upon the testimony of a witness who said that he was employed in the county treasurer’s office, and transferred or carried forward the amounts in column 13 of the tax record, which we understand to have contained the amount of taxes for which a decree was asked, to column 14, which was headed “Amount Decreed against Lands.” He stated that he thought he did that work after November 19th, which was the date of the decree. Counsel urge that this was not the act of the circuit judge, and that there was no decree against this land justifying a sale.

We held in the recent case of Morgan v. Tweddle, 119 Mich. 350, that where the figures were extended by the county treasurer after the decree was signed and filed in his office, as is said to have been done in this case, the decree should, upon application, be vacated by the court which made it. That was a direct proceeding to set aside an irregular decree, and in such a case the rule that “a record is conclusive evidence of its own verity” is not applicable.

In Trimble v. Longworth, 13 Ohio St. 431, it was said that:

“ The distinction between cases where the validity of the record of a court of general jurisdiction is drawn in question collaterally, and those in which such record is directly impeached by writ of error or bill of review, is broad and well defined. In the one case jurisdiction is presumed prima facie, unless the record disproves it, while in the other, .if it is denied, its existence must be proved by the record itself.”

In Newcomb v. Dewey, 27 Iowa, 381, it was held that, although a judgment recites that the defendant was ‘ ‘ duly and legally served with notice,” yet the contrary may be shown in a direct proceeding in the same court to vacate the judgment. The judgment of a court of competent jurisdiction is always presumed to be right, and this presumption will prevail in a direct attack, unless the party alleging error shall show it. See McNeill v. Edie, 24 Kan. 108; Bond v. Wilson, 8 Kan. 228 (12 Am. Rep. 466); Chambers v. Bridge Manufactory, 16 Kan. 270; Harman v. City of Lynchburg, 33 Grat. 37; Wright v. Smith, 81 Va. 777; Jencks v. Smith, 1 N. Y. 90; McGirk v. Chauvin, 3 Mo. 236; Singleton v. Boyle, 4 Neb. 414; Tebbetts v. Tilton, 31 N. H. 273.

While a judgment may be impeached in a direct proceeding, it cannot be collaterally. The decisions to this effect are numerous. See 1 Black, Judgm. § 245, note 1. The author says (sections 245-247):

“Where the court has jurisdiction of the "parties and the subject-matter in the particular case, its judgment, unless reversed or annulled in some proper proceeding, is not open to attack or impeachment, by parties or privies, in any collateral action or proceeding whatever. ‘The doctrine of this court, and of all the courts of this country, is firmly established, that, if the court in which the proceedings took place had jurisdiction to render the judgment which it did, no error in its proceedings which did not affect the jurisdiction will render the proceeding void, nor can such errors be considered when the judgment is brought collaterally into question.’ McGoon v. Scales, 9 Wall. 30. This principle is not merely an arbitrary rule of law, established by the courts, but it is a doctrine which is founded upon reason and the soundest principles of public policy. ‘It is one,’ says the court in Virginia, ‘which has been adopted in the interest of the peace of society and the permanent security of titles. If, after the rendition of a judgment by a court of competent jurisdiction, and after the period has elapsed when it becomes irreversible for erx-or, another court may, in another suit, inquire into the irregularities or errors ip such judgment, there would be no end to litigation, and no fixed, established rights. A judgment, though unreversed and irreversible, would no loxxger be a final adjudication of the rights of litigants, but the starting point from which a new litigation would spring up; acts of limitation would become useless and nugatory; purchasers on the faith of judicial process would find no px’otection; every right established by a judgment would be insecure and uncertain; and a cloud would rest upon every title.’ Lancaster v. Wilson, 27 Grat. 629. If the sentence last quoted seems somewhat extravagant, at least it will serve to show the substantial reasons upon which the rule rests, and the inflexibility with which it is held by the courts. According to the supreme court of Massachusetts, the rule obtains, ‘not because of an apparent authority ixx the court to render the judgment, but because the remedy by review or writ of error is held to be more appropriate.’ Hendrick v. Whittemore, 105 Mass. 28. * * *
“The rule against collateral impeachment applies to every judgment, order, decree, or judicial proceeding, of whatever species, that is not absolutely void. If the judgment is void on its face, it is, of coux’se, a mere nullity, and of no avail for any purpose, and this may be urged against it whenever it is brought in question. But otherwise, whether it be regular or irregular, correct or erroneous, valid or voidable, it- is not subject to collateral attack. The rule has been Ixeld applicable to a judgment in rein, whex’e the court had jurisdiction of the resj to a judgment condemning property in confiscation proceedings; to decrees rendered by a court of equity, when sought to be assailed ixx the same or another court; to a judgrnexxt in attachment; to a decree confirming an auditor’s report on the distribution of the estate of an assignor for the benefit of creditors; to a judgment forfeiting a recognizance, that being within the competence of the court; to an order passed by a superior court allowing a certain sum to the clerk for costs in insolvent criminal cases; to an order of court approving the act of an administrator in allowing a claim against the estate; to an order granting an allowance for the support of the widow and children; to an order setting aside a judgment by default; to a decree vacating a former decree upon a petition to be let in to a defense. The entry of a judgment in the judgment book, it is said, including the date of the judgment and the date of the docketing in the judgment docket, while standing as part of the court’s record, cannot be impeached collaterally. And while affidavits may be read, or proof heard, to show that words have been improperly stricken from a judgment, they cannot be received to falsify a record by showing that an alteration, correcting it, was improperly made.
“The principle that a record cannot be impeached collaterally for mere errors or irregularities is equally applicable to a statutory judgment against land for taxes as to any other decree. ‘It is no objection,’ said the supreme court of Alabama in a recent case, ‘ to the application of this-principle, that the present is a proceeding to enforce the collection of delinquent taxes. While great accuracy is exacted in all such proceedings, and strict rules are applied for the protection of the taxpayer, this principle, forbidding the collateral assailment of judgments, has often been successfully invoked in actions of this nature. It has accordingly been decided that there is no sound reason why judicial proceedings for the enforcement of taxes should be exempted from its influence.’ Driggers v. Cassady, 71 Ala. 533. Thus, the judgment cannot be impeached because it embraces also a personal judgment against the owner of the land besides the proper judgment against the land itself; for-that part of the judgment which is directed against the owner will be regarded as mere surplusage. The cases even go to the length of holding that it cannot be shown against such a judgment, collaterally, that the taxes on the particular tract had been in fact paid before the suit, although delinquency is the very fact upon which the jurisdiction of the court must be based. And, in one State, tax judgments were sustained as valid and binding, although it was shown that the assessment on which they were based was illegal and void.”

This rule applies to the record in this case. It was not competent for the complainant to attempt to impeach it by the parol testimony of its lawful custodian, and it must be held conclusive in this proceeding.

A decree was made on November 12th, and a later one on November 19th, under which the sale was made. It is evident that the latter was to take the place of the former, which was thought to be prematurely entered. A copy of the latter was attached to the tax record, and the sale under this decree has been confirmed.

It is said that no calendar entries appear in these proceedings, and that there is no evidence that there was a case pending, no appearance or default, no report of sale, and no enrollment. The decree was not void, and these questions are cut off by the provision of section 70, Act No. 206, Pub. Acts 1893, i. e., that no sale shall be set aside after confirmation, except in cases where the taxes were paid or the property was exempt from taxation. Spaulding v. O’Connor, 119 Mich. 45; Berkey v. Burchard, Id. 101. The case of Barnum v. Barnes, 118 Mich. 264, settles the question of enrollment upon other grounds.

Several questions affecting proceedings anterior to the decree are cut off by the decree. One was that the assessor did not assess mortgages; another, that the treasurer made no attempt to collect the tax; and a third, that the amount levied, and for which the decree was rendered, was too large. These questions might have been raised before decree, if at all, but cannot be after. Berkey v. Burchard, supra.

Counsel claim that the deed from the auditor general to Keith should be set aside for the reason that the taxes were paid to the county treasurer before Keith made a valid application to the auditor general. Such payment was made on January 30th. It is urged that the application must be considered as made on the 10th of February, the date of the deed. The evidence shows that an application was made on January 28th. Counsel say that this was not good, because the number of the lot was not inserted at that time, and because money was not paid to the auditor general. We do not find proof that justifies us in saying that the number of the lot was inserted later, and there is nothing to indicate that the auditor general did not accept the certificates ■ and check, and that the money was not collected on them before the 30th. We cannot assume the contrary.

On January 28th, when Keith deposited his checks with the' auditor general, it is said that there was an unpaid tax for the year 1896. It goes without saying that this tax had not been returned, for the rpll was still in the hands of local authorities for collection, and the State, county, and city taxes on that roll were actually paid by the brother of the complainant on January 30, 1897, 10 days before Keith’s deed was issued. The county treasurer remitted the amount due the State for the 1893 tax to the auditor general on January 30th, and he received it on February 2d. His letter, containing the remittance, stated that the later taxes, except those for 1896, were paid to the county treasurer, where they might lawfully be paid, and asked that a deed be made to the complainant. The auditor seems to have considered it his duty to issue the deed on February 10th to Keith, in disregard of this information, and without waiting for official evidence of its truth. This was probably upon the misconception of the law as to the current tax, as enunciated in Hughes v. Jordan, 118 Mich. 27. All that was ever paid by Keith was paid on the 28th of January. It is not claimed that he paid the taxes of 1896, but it is said that, inasmuch as they were actually paid, no matter by whom, before the deed was made, the amount previously paid in was sufficient, and the auditor had authority to make the sale and deed for the amount previously paid by Keith.

Wehaveheld in two cases (Hughes v. Jordan, 118 Mich. 27, and Detroit, etc., Ins. Co. v. Wood, Id. 31), that the condition to a purchase of state tax land is the payment of an amount including all taxes that remain a lien upon the land, and that this requirement (section 81) extends to current taxes, although not returned. It has been urged that this holding imposes hardships upon purchasers, By requiring them to pay current taxes, thereby incurring the hazard of having some other person purchase the lands from the State after payment of current taxes to the local treasurer, to the exclusion of the would-be purchaser’s making such payment, thereby placing him in the attitude of having made a voluntary payment of such current taxes, of which payment he could derive no benefit. These cases do not intimate that there is a necessity of payment to the local authorities. A man desiring to purchase state tax lands can ascertain the amount of current taxes due before making his application to purchase, and either by producing a statement that shall be satisfactory evidence to the auditor general of the amount of such taxes, or by conveying to the auditor general information that such tax remains unpaid if he cannot procure an official statement that the auditor will recognize, and paying him the amount in addition to the other amounts necessary, as shown by the auditor’s records, can secure his legal rights as a would-be purchaser, without being subjected to any risks whatever. This was not done in this case. Either Keith was unaware that there was an unreturned tax that was a lien, or he was disposed to disregard the provision of section 84, through a misconception of the law. It makes little difference which. He did not offer to pay that tax, and his application was insufficient. It was not given life and effect by the subsequent payment of the tax by complainant’s brother, and the deed should not have issued, as Mrs. Wilkin’s application had intervened. Without further application, the auditor general permitted Keith to have the deed, although he had received the tax of 1893, and had notice that all other taxes had been paid by the complainant. It may be said that the auditor could not lawfully deed to Wilkin, because he had no knowledge that the 1896 tax had been paid. If this is so, it is equally true that he could not lawfully deed to Keith, for the same reason. Complainant had a right to pay all of these taxes, and after-wards to purchase the State’s title by paying the amount of the State bid and charges. She did pay these taxes, and caused the necessary sum 'to be sent to the auditor general to pay the State bid and charges, with an application for a deed. This cut off Keith from acquiring a right to purchase under a new application, and we have already seen that the first one was futile, because of the outstanding tax of 1896, which he did not provide for. We find, then, that the auditor issued a deed without authority, and that the complainant was entitled to one under the then existing state of facts, when the same should be satisfactorily established. It may be that the auditor general was justified in withholding a deed from her until proper proofs were filed, but his authority to make a valid deed to Keith was cut off by the existing facts, whether they had come to his knowledge or not.

It may be said that the complainant has mistaken her remedy, and should have applied to the auditor general to cancel his deed, under the cases of Wood v. Bigelow, 115 Mich. 123; Kneeland v. Wood, 117 Mich. 174. We think section 98, as construed in these cases, has application to the sale and deed upon delinquent sale, and not to the auditor’s deed for state lands, made under the circumstances of this case.

The decree of the circuit court is affirmed, with costs.

The other Justices concurred.


text:
    RYERSON v. TOURCOTTE.
    1. Justices of the Peace — Written Instruments — Denial op Execution.
    Under 2 How. Stat. § 6928, dispensing with proof of execution of an instrument declared upon in justice’s court, when the same is filed with the justice, unless execution be denied under oath, a denial not under oath is insufficient to render such proof necessary.
    2. Bills and Notes — Presentation and Demand.
    It is unnecessary, in order to maintain an action against the drawer of certain orders to pay plaintiff, which are made payable only on the tenth of each month, that they be presented to the drawee on that day, if payment when they are presented to him be refused on the ground that he does not owe the drawer.
    8. Same — Execution by Agent — Authority.
    In an action on certain orders signed by defendant’s bookkeeper, evidence that defendant had paid orders so signed, and had stated that he would pay certain others so signed, is sufficient to justify a finding that the bookkeeper was authorized by him to sign the orders in suit.
    Error to Newaygo; Edwards, J.
    Submitted June 7, 1899.
    Decided July 11, 1899.

      Assumpsit by Richard Ryerson against Michael Tourcotte on orders for the payment of money. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. F. Tibbitts, for appellant.

      George Luton, for appellee.
   Hooker, J.

In an action before a justice of the peace, the plaintiff recovered a small judgment upon some orders, of one of which the following is a copy:

“Payable on the tenth of each month only.
“No. 40. Ludington, Mich., February 9, 1894.
“Rath & Cartier:
‘ ‘ Pay to the order of Oscar Leaf seventeen dollars and 97 cts., for charge to Max Tourcotte ac.
“$17.97. Max Tourcotte.
“Schuuey.”

Some of them were payable to other persons.

The case was taken to the circuit court by certiorari, where it was affirmed, and is now in this court upon writ of error.

The only question in the case is whether there was evidence to support the judgment. The return of the justice shows that the declaration was upon six certain written orders of the defendant, filed with the court as a part of the declaration. The plea was the general issue. Upon the trial, the defendant’s motion to amend the plea, by filing a written plea denying the execution of the orders, was granted, but there is nothing in the record indicating that the execution of the orders was denied under oath, as required by the statute (2 How. Stat. § 6928). The substance of the evidence is returned. One McDonald testified that Schuley was defendant’s bookkeeper, and he knew of his giving orders for defendant, and of the same being paid. The orders were offered in evidence. Defendant objected, upon the ground that they were incompetent, irrelevant, and not admissible under the proof made. This objection was overruled, and the orders were admitted. The witness testified, further, that he had a talk with defendant, in which he said he would pay some of the orders and some he would not; that plaintiff was acting the gentleman with him, and he would pay him. An objection to this as incompetent was overruled. The plaintiff testified that he owned these orders, and nothing had been paid on them; that he saw three of them drawn; that the orders were sent to Rath & Cartier, but not paid; that they said they did not ow© defendant. The defendant was sworn, but did not deny any of the claims of the plaintiff.

The errors alleged are:

1. That the orders were erroneously admitted, for the reason that there was no testimony tending to prove the indorsements on the back of three of the orders, or that plaintiff had a right to sue on the same, or ha’d any legal title to any of them, nor was there any evidence to show that they were presented to Rath & Cartier for payment on the 10th of any month.

2. That there was no proof that they were presented in a reasonable time, or at any time, to Rath & Cartier for payment, or that the defendant was ever notified, or that they were presented to defendant for payment, nor was there any proper evidence that Schuley had authority to sign such orders.

3. That the court erred in refusing to strike out the statement of McDonald that defendant said he would pay plaintiff.

The orders were admissible without proof, under the statute; their execution not having been denied upon oath.

The testimony of the plaintiff showed that he was owner of them all, and that they were presented for payment to Rath & Cartier, who refused to pay them, because they did not owe defendant. Under these circumstances, it was not necessary to present them again on the 10th of any month, if they were not presented at such a time in the first instance.

The authority of Schuley can be inferred from the testimony in the case.

We find no error, and the judgment is affirmed.

The other Justices concurred.


text:
    NESTER v. CHURCH.
    1. Taxation — Setting Aside Sale — Irregularities.
    A tax sale will not be set aside, after confirmation, because of (1) defects in the assessment roll, (2) the neglect of the collecting officer to make the tax out of personal property, or (3) the disproportion between the value of the land and the amount of the tax for which the same was sold'; section 70 of the tax law forbidding such action except for one of the reasons therein specified.
    2. Same — Proof of Publication — Sufficiency.
    Two affidavits of publication of the petition and order in a tax proceeding are to be taken as supplementary, and are sufficient if, when read together, they supply all that the statute requires.
    Appeal from Houghton; Haire, J., presiding.
    Submitted February 6, 1899.
    Decided July 11, 1899.
    Petition by George Nester and others against Frank E. Church and Roscoe D. Dix, auditor general, to set aside a tax sale. From an order granting the prayer of the petition, respondent Church appeals.
    Reversed.

      T. F. Tarsney and W. Gf. Fitzpatrick, for petitioners.

      W. S. Hill and Frank E. Robson, for appellant.
   Moore, J.

The following statement of facts is taken from the brief of counsel for respondent Church: August 31, 1894, the auditor general filed the usual petition for the sale of lands delinquent for taxes for 1892 and previous years, in the circuit court for Houghton county, in chancery. On the same day the usual order was made, fixing the date of hearing November 5, 1894. This, with the petition, was duly published in the Portage Lake Mining Gazette, a newspaper published at Houghton. Proof of publication was subsequently filed, and a final decree made in the statutory form November 22, 1894. The tax sale was commenced December 3, 1894, and concluded December 5, 1894, a report of which by the county treasurer was made and filed with the county clerk December 15, 1894. Among other lands included in these proceedings was the N. i of the N. E. J of section 16, township 48 N., range 37 W., situated in the township of Duncan, Houghton county, which had been returned delinquent for the taxes of 1892, and which appeared on the assessment roll assessed to Thomas Nester. At the tax sale held under the proceedings above noted, Frank E. Church, one of the respondents, and the appellant here, became the purchaser of the lands above described, and obtained a deed therefor from the auditor general under date of June 19, 1896. The petitioners, George Nester et al., are the children and widow of Thomas Nester, deceased, and claim title to the land as his heirs* Thomas Nester died intestate at Baraga, Baraga county, April 12, 1890. This estate was probated in Wayne county, George Nester (one of the petitioners) and the late Judge Marston being appointed administrators; and since the death of Judge Marston, in October, 1891, George Nester has continued as administrator. The estate has not yet been closed, and no proceedings touching the death of Thomas Nester or his estate have been had or recorded in Houghton county. The business of Thomas Nester, which was somewhat extensive, has since his death been carried on in the name of the administrator, no division or settlement of the estate having been had.

November 8, 1897, petitioners filed their petition in the Original tax proceedings on the part of the State of Michigan; praying, among other things, that the decree therein entered, and the sale to Mr. Church in pursuance thereof, be vacated and set aside, and that the petitioners have leave to file a proposed answer, which was tendered, to the original petition of the auditor general. The alleged defects in the proceedings upon which this application is based may be summarized as (a) defects in the assessment roll; (5) that the township treasurer could have collected the tax out of personal property; (c) want of evidence of legal designation of the paper in which the notice of hearing should be published; (d) defective proof of publication. The auditor general filed an answer to their petition, making, substantially, a general denial of the matters contained in the petition. The respondent Church answered, denying the material charges of the petition so far as it set up matters outside of the records in the tax proceedings, and affirming the validity of the sale and the proceedings founded upon it. The matter was brought on for hearing, and proofs taken in open court. After consideration by the court, an order was made November 9, 1898, setting aside the sale to Mr. Church, opening the decree upon which it was based, and allowing petitioners to file their proposed answer. From this order Mr. Church appeals to this court.

As to the defects in the assessment roll, they were not of such a character as would avail the petitioners in this proceeding, after a decree. Neither can the petitioners take advantage of the fact, if it was a fact, that the township treasurer could have collected the taxes out of personal property within the township. Act No. 206, Pub. Acts 1893, § 70; Muirhead v. Sands, 111 Mich. 487; Auditor General v. Sparrow, 116 Mich. 574; Ball v. Ridge Copper Co., 118 Mich. 7; Berkey v. Burchard, 119 Mich. 101; Hughes v. Jordan, 118 Mich. 27; Spaulding v. O'Connor, 119 Mich. 45.

Counsel strenuously insist there was no sufficient affida- • vit of publication to confer jurisdiction upon the court to make the decree. The record discloses that when the decree was made there were two affidavits 5f publication on file. The first one is as follows:'

“State oe Michigan, 1 County of Houghton. ) ss’
“ Brainerd T. Judkins, being duly sworn, deposes and says that he is the printer of the Portage Lake Mining Gazette, a public newspaper printed and circulated in said county of Houghton, and that the notice of which the annexed is a true copy, taken from the paper in which it was published, was published in said newspaper once in each week for four successive weeks, five publications, commencing on the 4th day of October, A. E>. 1894, and ending on the 1st day of November, A. D. 1894, and that he personally knows the facts above set forth.
“Brainerd T. Judkins.
“Subscribed,” etc.

This one was filed November 1st. It was thought perhaps this affidavit was defective, and on November 22d there was attached to this affidavit, and filed in court, another, reading as follows:

“State oe Michigan, ) County of Houghton. ) '
“Brainerd T. Judkins, being first duly sworn, deposes and says that he is the publisher of the Portage Lake Mining Gazette, a newspaper published and circulating in said county of Houghton, and the newspaper selected by the auditor general for the publication of the petition of the auditor general of the State of Michigan for the sale of certain lands for taxes assessed thereon, and the order of the circuit judge in the circuit court for the county of Houghton, in chancery, issued thereon. And this deponent further says that a copy of said-order and a copy of said petition, in the form hereto annexed, were published in said newspaper, the Portage Lake Mining Gazette, for four successive weeks next prior to the time of hearing thereof; said time being the fifth day of November, A. I). 1894.
“Brainerd T. Judkins.
“Subscribed,” etc.

We do not deem it necessary to decide whether one of these affidavits, standing alone, would be sufficient or not. The last one was intended to supplement the first one, and supply any supposed defects. They were both filed in the proceeding before any decree was made, and must be treated, for the purposes of this case, as though they were one paper. When so considered, they supply all the requirements of the statute. Wynkoop v. Grand Traverse Circuit Judge, 113 Mich. 381; Garner v. Wallace, 118 Mich. 387; Spaulding v. O'Connor, 119 Mich. 45.

We are asked to set aside this sale because the amount of taxes for which the land was sold was greatly out of proportion to the value of the land. It is said, “It has never been the policy of the State to condemn unheard, or sequester property without an opportunity for defense.” We do not think it can be said that the property of the petitioners is sequestered in this proceeding without an opportunity for defense. They knew, as all property owners know, that their property was liable to taxation; and, if they neglected to pay the taxes due thereon, it became the duty of the tax officers to return the land, and have it sold, that the tax might be made, and the State and municipalities furnished with the funds to pay the expenses of government. It is the duty of the property owner to take notice of the various provisions of the law. The petitioners had the same opportunity to prevent a sale of their property for nonpayment of taxes that is open to every property holder. Our attention is not called to any provision of the tax law authorizing the court to set aside a sale because the property is valuable and the amount of the tax is small. It is the duty of the court to decide whether or not the proceedings have been according to the provisions of the law. Where they have been, it is its duty to sustain them, though in a given case injustice may be done. We do not find any defects in the proceeding sufficient to invalidate the deed of the respondent.

The decree of the court below is reversed, and the 'petition dismissed.

Montgomery, Hooker, and Long, JJ., concurred. Grant, O. J., did not sit.


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    ALLEN v. HAMBURG-BREMEN FIRE INSURANCE CO.
    Garnishment — Supplemental Disclosure — Insurance Companies.
    A judgment may be rendered against a foreign insurance company, as garnishee, upon a supplemental disclosure by its general agent acknowledging an indebtedness to the principal defendant to an amount equal at least to plaintiff’s claim, made when he was served with a summons to show cause why judgment should not be rendered against the company after its failure to appear on the day to which an adjournment was taken, by consent of its attorney, for the purpose of obtaining a supplemental disclosure, although the original disclosure, understood by the parties to be incomplete, showed no indebtedness.
    Error to Saginaw; Wilber, J.
    Submitted June 7, 1899.
    Decided July 11, 1899.
    Garnishment proceedings by William H. Allen and Orville O. Allen against the Hamburg-Bremen Eire Insurance Company of Hamburg, Germany, as garnishee of Benjamin S. Krupp. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Lincoln E. Bradt, for appellant.

      John E. O'Keefe, for appellees.
   Hooker, J.

The plaintiffs began garnishment proceedings against the defendant, a foreign insurance company, before a justice of the peace; a judgment against the principal debtor having been theretofore rendered. On the return day the parties appeared, — the defendant, by its general agent, William B. Baum; and at his request the case was adjourned. On the day to which the case was adjourned, both parties appeared by attorneys, and the defendant filed a written disclosure, denying its indebtedness. At this time counsel for the defendant stated that there was some controversy between the principal debtor and the garnishee defendant concerning the indebtedness of the latter to the former, and that it would probably be adjusted soon; and at the request of plaintiffs’ attorney, and without objection on the part of the defendant’s attorney or agent, the cause was adjourned for a further disclosure to November 18th. Upon that day the justice was in attendance upon the circuit court as a witness, and the case was treated as continued two weeks, at which time the plaintiffs appeared. No one appeared for the defendant, and a summons was issued, requiring defendant to appear and.show cause why judgment should not be rendered against it. This was served upon Baum, its general agent, who appeared for the defendant, and stated under oath that, at the time the original summons was issued, he was the duly-authorized agent for the defendant, and was still its agent, having charge of its business in and around Saginaw, and that it had issued'a policy of insurance for $500 upon the property of the principal defendant, which remained in force at the time said property was destroyed by fire, and that under its terms the defendant was indebted to the principal defendant in at least the amount claimed by plaintiffs, and that he had no knowledge that the same had been paid. A declaration was filed, to which no plea was filed or defense made, and judgment was rendered against the garnishee defendant for $62, inclusive of costs. This judgment was removed to the circuit court by certiorari, where it was affirmed. The defendant brings it to this court by writ of error.

As we view the return, it shows that the defendant appeared upon the return day both by the agent served with process and by attorney. Under the statute it was the duty of the former to make disclosure, and this was in part done; but it is apparent that it was not considered as complete, and an adjournment was taken to permit a further disclosure. This,was subsequently made, and we think that the.record shows sufficient to justify the finding of. an indebtedness. This disclosure was not made on the adjourned day, for the garnishee did not appear. It cannot be tha,t the court lost’ jurisdiction by the failure of the garnishee to appear, and it is obvious that the agent, who, under the statute, was in duty bound to represent the defendant, so understood it. See First Nat. Bank v. Burch, 80 Mich. 245. On being summoned to show cause, he came in and made his supplemental showing, and made no opposition to the entry of judgment. It is insisted that the court should have acted upon the first, and incomplete, disclosure, but we think otherwise, for the disclosure was not understood to be complete. Upon being summoned to show cause, the garnishee made a supplemental disclosure. This the garnishee might lawfully do. Drake v. Railway Co., 69 Mich. 168 (13 Am. St. Rep. 382).

We are of the opinion that the judgment of the circuit court was correct. It is therefore affirmed.

The other Justices concurred.


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    McGINLEY v. CALUMET & HECLA MINING CO. HALL & MUNSON CO. v. AUDITOR GENERAL.
    Tax Sales — Validity oe Deoree — Premature Adjournment oe Court.
    A decree for the sale of land for taxes is void where, having entered it, the court adjourned for the term on the fourth day after the day fixed for hearing the auditor general's petition for the sale, even though the day following the date of adjournment was Sunday; the landowner being entitled, under section 66 of the tax law of 1893, to five secular days after such day of hearing in which to ask permission to file objections to the tax. Peninsular Savings Bank v. Ward, . 118 Mich. 87, followed.

      Appeals from Luce; Steere, J.
    Submitted April 18, 1899.
    Decided July 11, 1899.
    Bill by Charles A. McGinley and Frank Gregory against the Calumet & Hecla Mining Company, the Hall & Munson Company, and Frank Perry to quiet complainants’ title to lands claimed by them under a tax deed. From a decree dismissing the bill, and granting affirmative relief to defendants Hall & Munson Company and Perry, complainants appeal.
    Affirmed.
    Petition by the Hall & Munson Company and Frank Perry against Roscoe D. Dix, auditor general, Charles A. McGinley, and Frank Gregory to set aside the tax sale in question. From an order dismissing the petition, petitioners appeal.
    Reversed.

      M. J. Sherwood, for McGinley and Gregory.

      E. S. B. Sutton (John H. Goff and Humphrey & Grant, of counsel), for Hall & Munson .Company and Perry.
   Montgomery, J.

These two cases involve the same question, namely, whether a sale of certain lands in the township of McMillan, Luce county, for the taxes of 1893, under a decree of the circuit court for Luce county, in chancery, made November 16, 1895, is valid. We need consider but a single question. The day of hearing fixed by the order of the court, notice of which was published, was November 12th. The court, after entering a decree on the 16th day of November, adjourned without day. This avoids the decree, under our decision in Peninsular Savings Bank v. Ward, 118 Mich. 87, to which we adhere, unless, as is contended by counsel for the purchasers under the tax deed, the fact that the next day after the date of adjournment was Sunday affects the question. The point made is that as the owners would have had but five days after the first day of the term in ■which to ask permission to file objections, and as court could not sit on Sunday, they had the full four preceding days, and all the time they were entitled to. We think, however, the owners were entitled to five secular days. Simonson v. Durfee, 50 Mich. 81; Caupfield v. Cook, 93 Mich. 636.

The complainants’ bill will be dismissed, and petitioners in the direct proceeding will be entitled to have the decree vacated upon payment of the taxes and interest, which it appears by their petition they have offered to pay, and will recover costs of one proceeding.

Hooker, Moore, and Long, JJ., concurred. Grant, O. J., did not sit.


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    WUERTHNER v. WORKINGMEN’S BENEVOLENT SOCIETY.

    1. Mutual Benefit Societies — Rejection of Claim — Custom— CONOLUSIVENESS.
    A finding by the tribunals of a benevolent society that a member is not entitled to sick benefits cannot be rendered conclusive, so as to preclude resort to the courts, by reference to a custom of the society, where there is nothing in the constitution or by-laws which so provides.
    3. Same — Expulsion of Claimant.
    A mutual benefit society cannot defeat a proper claim for benefits by expelling the member upon the theory that his claim is fraudulent.

    3. Same — Cause of Illness.
    Where there is no provision in the constitution or by-laws of a benevolent association releasing it from its obligation to pay sick benefits if the illness is caused by the indiscretion of a member, it will be liable, though the condition of the member has been brought on by indulgence in unnatural and vicious habits.
    Error to Washtenaw; Kinne, J.
    Submitted June 6, 1899.
    Decided July 11, 1899.

      Assumpsit by Carl F. Wuerthner against the Workingmen’s Benevolent Society to recover sick benefits. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Lehman Bros. & Stivers, for appellant.

      A. F. & F. M. Freeman, for appellee.

       Rehearing denied September 37, 1899.

       On the question of the effect of expelling a member upon his right to insurance connected with his membership, there is a note to Ellerbe v. Faust, (Mo.) 25 L. R. A. 149.

   Hooker, J.

The plaintiff was a member of a local benevolent society, and made a claim for sick benefits amounting to $78, claiming to have been entitled to them for a period of 26 weeks, during which time, his declaration alleges, he was sick and unable to work, on account of nervous trouble. The case was submitted to a jury, and a verdict in favor of the defendant was rendered. The plaintiff has appealed.

The evidence showed that the society placed his claim in the hands of a committee, according to its custom, and a report to disallow the claim was adopted. Subsequently the plaintiff was expelled from the society' for making a false claim, and it was contended upon the trial that, not being a member at the time the action was brought, he could not recover, for the reason that the finding of the society upon that subject cannot be reviewed by the courts. It was claimed by the defendant that the action of the society upon the claim was final and binding upon the parties. It was not shown that any provision of the constitution or by-laws made it so, but the defendant was allowed to show that such decisions were considered final by the society, under its custom of conducting business. The court instructed the jury that they might—

“Take into consideration, as far as the same may have been disclosed by the evidence, the action and construction which the society, from time to time, may have taken and given to its rules and regulations. I think there can be no doubt that the purpose and intent of the society, in the exercise of its benevolence, is to reach those cases where the party is unable to perform labor by reason of sickness; that the words ‘ sickness ’ and ‘ inability to perform labor ’ are synonymous terms, and mean one and the same thing. In other words, that the sickness must be of such a character that the member is unable to perform labor, and this sickness or inability to perform labor may be either of a mental or of a physical character, and the one may be as certain and serious and as incapacitating, as the other. A genuine case of mental or nervous prostration may be as serious and fatal as a purely physical malady. In either case the test is, Is the member, by reason of his sickness, be it mental, nervous, or physical, in such a condition that he is too ill to perform labor ? If he is, then he is entitled to his indemnity. If he is not, then he has no claim.”

This instruction was evidently intended to apply to the degree of incapacity requisite to a right of recovery, but elsewhere he said:

“Upon another branch of this case, independent of what I have said, I say to you: The plaintiff in this case having placed his claim for allowance before the defendant society and its sick committee, and the society having exercised the right of discipline, and expelled the plaintiff as a member of the order by reason of placing the particular claim for allowance before the society on which he has planted his cause for action in this case, — in view of this situation, and of the facts and circumstances here in testimony, courts are reluctant to interfere with the disciplinary powers of voluntary organizations like the defendant society. These societies have ordinarily organic power to discipline, correct, and remove their own members, and the courts are not inclined to interfere in this arrangement, unless it satisfactorily appears that some wrong or injustice has been done to the plaintiff. In that connection I also charge you: If from the evidence in this case you find that, in all the proceedings of the society to disallow this claim, the society acted in accordance with its rules, regulations, by-laws, and constitution, both in letter and spirit, and if the society in this matter acted honestly and in good faith, seeking only to do equal and exact justice, then such action is binding and conclusive upon the plaintiff, and he cannot recover or set it aside in this court. But, on the other hand, if you find from the evidence that this plaintiff has been unlawfully dealt with by the society, if the action and proceedings of the committee was unfair or unjust to the plaintiff, if the action of the committee or society was hasty, oppressive, or arbitrary, or actuated by improper or unjust motives, then such action would not be binding upon the plaintiff.”

There was testimony introduced tending to show that the plaintiff’s condition might be due to immoral practices, and the judge instructed the jury that:

“ There has been some testimony which it is claimed tends to show that the plaintiff is himself responsible for his condition; that is, that by course of misconduct he has brought upon himself his present troubles. If the plaintiff has willfully and immorally violated the laws of nature and the laws of health, and thereby occasioned his ill health, of course he cannot charge the defendant society with the result that might naturally flow therefrom. * * * If you find from the testimony that the plaintiff was sick or in a disordered or disabled condition, and you further find that such condition was brought upon him by his “own immoral and impure practices, as claimed by the defendant, your verdict, of course, must be for the defendant. The law will not permit a recovery for a condition brought upon oneself through his own vice and immorality, or by his own impure practices.”

We are of the opinion that this charge was erroneous. The plaintiff’s rights rested upon a contract that did not attempt to prohibit recourse to courts of law, and the prohibition of such a right cannot rest upon custom or the good faith of one of the parties. While we have held that the determination of such questions by the tribunals of an order or society may be final where the constitution and by-laws so provide, such is not the rule when there are no such provisions. A strict construction should be given to provisions abridging the common right of resort to the courts. Again, we think the society could not affect the member’s right to a sick benefit, or to sue for the same, by expelling him upon the theory that his claim was a fraudulent one. If it could, there would be an easy way of defeating claims. Bachmann v. Arbiter Bund, 64 How. Prac. 442. Nor do we think the instruction in relation to the cause of sickness was correct. The by-law reads as follows:

“Section 1. Every member is to receive an indemnity of three ($3.00) dollars per week in case of sickness or inability to perform labor from the date of such sickness or inability to perform labor, but should, however, report such sickness or inability to perform labor to the sick committee at his earliest possible opportunity. Should the sickness or inability to perform labor continue for a period of more than six months, then the responsibility ceases. However, in cases of necessity, the society would render him assistance, if possible, to the best of its ability. ”

This is a broad provision, and contains no hint that the society will not pay when the incapacity is the result of illness due to indiscretion’ or vice. The claim of the defense in this case has force, by reason of the repulsive nature of the vice; but had the sickness resulted from overexertion in sport, or overeating, or the liquor habit, the same defense might be made, if this is permissible.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    WAIT v. McMILLAN.
    Tax Sales — Validity—Premature Decree.
    A decree of sale in a tax proceeding is void as to a landowner who did not appear, where it was rendered before the expiration of five days after the day fixed for hearing the auditor general’s petition; such owner being entitled to that time in which to ask permission to file objections to the tax: Following Peninsular Savings Bank v. Ward, 118 Mich. 87; Youngs v. Clark, 120„Mich. 528.

    Appeal from Osceola; McMahon, J.
    Submitted May 4, 1899.
    Decided July 11, 1899.
    Bill by Fred S. Wait against Andrew J. McMillan to quiet title. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      G. H. Bose, for complainant.

      C. M. Beardsley, for defendant.

       It did not appear from the record in this case whether or not the court adjourned for the term on the same day on which the decree was rendered; but defendant’s brief asserted that such was the fact.

       See, also, McGinley v. Mining Co., ante 88.

   Moore, J.

Defendant, a resident of British Columbia, was the original owner of the land in controversy. His land was sold for the taxes of 1890 and 1892, to the State. The complainant made application at the office of the auditor general to buy this land, and paid for it, June 3, 1897. He obtained his deed September 18, 1897. Later he obtained possession of the land, and filed a bill to quiet his title. The defendant answered the bill, and attacked the validity of the tax proceedings, assigning a number of reasons why they were void. The circuit judge filed a written opinion of his conclusions, and dismissed the bill of complaint. According to bis findings, the reason why he dismissed the hill was because, under the provisions of Act No. 229, Pub. Acts 1897, the complainant was under the necessity of giving the owner six months’ notice before he could take possession of the lands, and, as he had not given the notice, he could not maintain this bill.

When the decree was rendered by the learned judge, the case of Pierpont v. Osmun, 118 Mich. 472, had not been decided. The opinion in that case is contrary to the conclusion of the trial judge. His decree, however, should stand, for another reason. It appears by the record that the order for a hearing in the tax proceedings fixed the time of hearing for the 17th day of September, 1894, while the decree establishing the lien and the amount thereof, and directing a sale, was made on the 21st of September. As has already been stated, the defendant was not a resident of this State. The only service made upon him of this proceeding was the notice provided by the statute. He did not appear and file objections* and thereby waive any of the requirements of the statute which were essential to give the court jurisdiction to enter the decree. He was entitled to five days, upon a proper showing, in which to file his objections. The decree was taken before the five days elapsed. The case is controlled by Peninsular Savings Bank v. Ward, 118 Mich. 87, and Youngs v. Clark, 120 Mich. 528. The decree was prematurely taken, and therefore void as to those who did not appear, or otherwise waive the right to apply for further time.

The decree is affirmed, but without costs in this court.

The other Justices concurred.


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    CHURCH v. SMITH.
    Taxation — Purchase of State Lands — Nonpayment of Existing Liens — Statutes.
    One who bought and obtained a deed of state tax land prior to the taking effect of Act No. 229, Pub. Acts 1897, requiring subsequent purchasers of such lands to give six months’ notice to the original owner as a condition precedent to their maintaining ejectment for -the premises, was nevertheless within the terms of said act, where taxes constituting a lien upon the land at the time of his purchase, and which, under section 84 of the tax law of 1898, should then have been paid by him, were not paid until after the act of 1897 had become operative.
    Error to Muskegon; Russell, J.
    Submitted May 10, 1899.
    Decided July 11, 1899.
    Ejectment by Dayton Church against Aaron P. Smith and Sylvester Avery. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Arthur Jones, for appellant.

      Bunker & Carpenter, for appellees.
   Montgomery, J.

The plaintiff brought suit in ejectment against the defendants, impleaded with two others, against whom suit was afterwards discontinued. The action is for the recovery of the N. £ of the S. W. £ of section 31, in township 11 N., of range 16 W., to which premises the plaintiff claimed title in fee. The plea is the general issue. The 'plaintiff claimed title by proof of a tax deed for the taxes of 1892 and 1893. The deed was issued June 29, 1897, the application having been made to the auditor general on May 20th previous. The government title was shown to have been in the defendant Avery, and possession was admitted to be in the defendant Smith. The court directed a verdict for the defendants, and the plaintiff brings error.

The defense is as follows:

1. That, when the auditor general made the sale to the plaintiff, the latter did not pay the taxes of 1896.

2. That, when the auditor general made this sale, the State was the owner of the title for the tax of 1891.

As to the first proposition, the facts are admitted by the plaintiff, but we are met by proof of subsequent payment. As to the second proposition, the facts are disputed by the plaintiff.

The application having been made May 20, 1897, it is conceded that the taxes for 1896 were a lien on the land, and, under the decision in Hughes v. Jordan, 118 Mich. 27, should have been paid. It is also conceded that they were not paid at that time. But the plaintiff showed upon the trial of the case that afterwards, and on August 4, 1898, he applied to the auditor general to pay these 1896 taxes, and did in fact pay them, and obtained a receipt dated September 30, 1898, which was offered in evidence.

At the time suit was brought, no title had vested in plaintiff. If it be said that his payment to the auditor general, together with his subsequent payment of the 1896 taxes, entitled him to a conveyance, the fact remains that the statute of 1897 (Act No. 229, Pub. Acts 1897), requiring notice of six months before ejectment can be brought, had in the meantime taken effect, and as the sale by the State had not taken place, or plaintiff entitled himself to a conveyance, until after the statute took effect, its provisions would control.

Judgment affirmed.

The other Justices concurred.