Wright v. Wright

• Citation: 13 Mich. 414
• Court: Supreme Court of Michigan
• Decision Date: 10 July 1865
• Parties: Reuben Wright v. Silas F. Dunham

13 Mich. 414

Reuben Wright v. Silas F. Dunham

Supreme Court of Michigan

July 10, 1865

Heard July 8, 1865

Case made after judgment from Ionia circuit.

Judgment of the court below was for the defendant. The facts are sufficiently stated in the opinion.

Judgment reversed, and judgment entered in the court for the plaintiff, with costs of both courts; and the case remanded for further proceedings, and to give the defendant an opportunity for a new trial under the statute.

E Gould, for plaintiff.

A. F Bell, for defendant.

OPINION

Cooley J.

This was an action of ejectment brought by Wright to recover the southeast quarter of section thirty-five, in township seven north of range seven west, being the township of Berlin, Ionia county, to which he claimed title under a sale of the same as state tax lands; they having been struck off to the state for delinquent taxes of 1843, and sold to the plaintiff October 6, 1847. By the law in force at the time of this sale, the deed of the auditor-general, given to carry it into effect, was made "prima facie evidence of the correctness of all the proceedings to the date of the deed, and of title in the grantee therein named:" R. S. of 1846, p. 118, § 109.

The defendant sought to rebut the prima facie case made by the deed, by showing that illegal taxes were included in the sum for which the land was sold. To establish this fact, he proved by the records of the board of supervisors that, on March 22, 1842, a contract was made by them with one Elvert to tend a ferry across the Grand river at Ionia, for one year from the 11th day of April then next, for the sum of one hundred and fifty dollars; and that his account for services as such ferryman was afterwards, and within a year from that time, allowed by the board. He also proved that, on October 5, 1843, the board "voted to raise fifteen hundred dollars for county purposes for the current year;" and he showed by their records that the accounts allowed by them during the preceding year, including the allowances to Elvert, amounted to one thousand four hundred and sixty-two dollars and six cents. And it is insisted that the board had no authority to make this contract with Elvert, and that it is a reasonable presumption, from the facts shown, that the amount thus illegally allowed to him was included in the tax levy of 1843.

If, by law, the accounts allowed by boards of supervisors were to remain unpaid until provided for by taxes raised the succeeding year, the presumption which the plaintiff insists upon might be a reasonable one; but as it was both competent and proper for them to vote in each year such sum as they should estimate to be necessary to meet the demands against the county for the fiscal year succeeding, we cannot, in the absence of any proof on the subject, conclude that they did not adopt that course. The presumption which the deed raises in favor of the regularity of all the proceedings must prevail, until the party who assails it has overcome that presumption by evidence which is inconsistent with it: Lacy v. Davis, 4 Mich. 140; Amberg v. Rogers, 9 Mich. 332. The facts shown in this case are not inconsistent, unless followed up by further evidence, showing that at the time of the allowance to Elvert the county was without funds, and that the amount remained a debt against the county, and was included in the sum voted to be raised the following October.

At most, the evidence adduced only tends to establish a misappropriation of county funds by the supervisors at the time when the allowances were made; and this misappropriation could only affect the tax levy of the subsequent year, by rendering it necessary to raise a larger amount for other purposes than would otherwise have been required. But if the subsequent tax levy is thereby rendered illegal, it is obvious that the county, by a single misappropriation of money, would lose all power to levy and collect taxes thereafter. We do not think this result follows, or that the supervisors have any power to disorganize and destroy the county by a wrongful appropriation of its funds.

The defendant also showed, by the records in the county treasurer's office, that the whole south half of section thirty-five was returned as one parcel to the county treasurer, for the non-payment of the taxes thereon, while only the east half of...