Adair v. Bonninghausen

• Decision Date: 06 April 1943
• Docket Number: No. 28.,28.
• Citation: 9 N.W.2d 35,305 Mich. 137
• Parties: ADAIR et al. v. BONNINGHAUSEN et al.
• Court: Michigan Supreme Court

305 Mich. 137

9 N.W.2d 35

ADAIR et al.

v.BONNINGHAUSEN et al.

No. 28.

Supreme Court of Michigan.

April 6, 1943.

Suit to quiet title to undivided one-half of certain premises by Raymond Adair and another against Richard I. Bonninghausen, Lillian G. McEwan and others, wherein defendant last named filed a cross-bill. From the decree, defendant last named appeals.

Affirmed.Appeal from Circuit Court, Alcona County, in Chancery; Herman Dehnke, Judge.

Before the Entire Bench.

Henry K. Gustin, of Alpena, for appellant Lillian G. McEwan.

William R. Barber, of Harrisville, for appellees.

BUTZEL, Justice.

Plaintiffs brought suit to quiet title to the undivided one-half of the west one-half of the southeast quarter, with certain exceptions, of section 12, township 26 north, range 8 east, Gustin township, Alcona County, Michigan. They claim title under State tax land deeds issued by the auditor general for unpaid taxes for the years 1920 to 1926, inclusive, and ten years' occupancy thereunder. Notice of reconveyance was properly filed and recorded. It was served upon Lillian G. McEwan, defendant and sole appellant herein, but not upon all the other interested parties. In July, 1929, six months after the filing of the notice of reconveyance, plaintiffs entered into possession of the property and immediately repaired one fence along the railroad right of way running through the land and also another fence at the edge of the swamp next to the land of an adjacent owner in order to keep their cattle within bounds. They used the lands, which were of very poor quality, for pasturage. They also thinned out the wood and took what they wanted for their own use. They later built 100 rods of new fencing. They also paid all the taxes on the property for the ten years. Plaintiffs' claim is based upon adverse possession of the property continuing for the period of ten years or more under color of the tax deed from the auditor general. All defendants herein with the exception of Mrs. McEwan were either defaulted or their interests were acquired by plaintiffs. Mrs. McEwan filed a cross-bill asking that the tax deeds be declared null and void and plaintiffs be enjoined from asserting any right, title or interest in the undivided one-half interest in the property involved. She claimed that the statutory notice of reconveyance was not properly given and that adverse possession must continue for at least 15 years before validating the title. The trial court, after a careful analysis of subsection 2 of § 13964, (Stat.Ann. § 27.593), held there had been 10 years' adverse possession which began six months after filing of notice for reconveyance, and that the plaintiffs were entitled to decree quieting title against McEwan unless she would agree to reimburse plaintiffs for one-half of the amount paid in acquiring the tax titles plus 5 per cent. interest and one-half of the present value of the new fencing, the case being one in equity in which all the parties sought equitable relief.

The trial judge was presented with the construction of 3 Comp.Laws 1929, § 13964 (Stat.Ann. § 27.593), of which we quote the pertinent parts:

‘Hereafter no person shall bring or maintain any action for the recovery of any lands, or the possession thereof * * * unless such action is commenced: * * *

‘2. Within ten (10) years, where the defendant claims title under a deed made by some officer of this state * * * authorized to make deeds upon the sale of lands for taxes assessed and levied within this state;

‘3. Within fifteen (15) years in all other cases.’

Can defendant McEwan claim any title under a tax deed within the meaning of this statute after non-action for over ten years on the ground of plaintiff's failure to serve notice of reconveyance on all interested parties after plaintiffs have been in possession of the property? 1 Comp.Laws 1929, § 3466 (Stat.Ann. § 7.119) provides that until notice has been given, persons claiming title under a tax deed shall be forever barred from asserting such title. Tax title proceedings are always closely scrutinized and strictly construed. McVannel v. Pure Oil Co., 262 Mich. 518, 247 N.W. 735. Unless notice to redeem is served within the statutory period, the purchaser cannot assert title under his tax deeds. Brousseau v. Conklin, 301 Mich. 241, 3 N.W.2d 260;McClure v. Knight, 284 Mich. 649, 280 N.W. 76. Under the circumstances, the purchaser, by entering into possession and exercising acts of ownership, becomes a trespasser. But a trespasser by adverse possession which is open and notorious for the requisite number of years may acquire title. Appellant claims that the necessary period of occupancy whether under color of a tax deed or otherwise is 15 years. In the cases, that counsel for appellant relies on, however, the tax titles themselves were attacked. In none of them was there any claim that possession continued for the full period of ten years, and thus the question of adverse possession was not considered. The rule applicable to the facts in the case at bar was stated in Chamberlain v. Ahrens, 55 Mich. 111, 20 N.W. 814, 815:

‘The statute does not contemplate that the deed must be good, for then no limitation would be necessary to protect the possession. A claim which is consistent with the face of the deed, and which is asserted for 10 years, with possession, is all that the law requires.’

Again, in Reilly v. Blaser, 61 Mich. 399, 28 N.W. 151, 152, we said:

‘The statute protects parties entering under tax titles, whether good or bad, after 10 years' occupancy. * * *

‘Purchasers of tax titles take no more than the deeds give them, provided they are seasonably attacked; but, when they go into possession, they have a right to require all attacks to be made within the statutory period. There is no reason for importing into the statute a new condition, and for saying that for some infirmities the deeds shall be assailable for a longer period than for others.’

See, also, Lasley v. Kniskern, 152 Mich. 244, 115 N.W. 971. Some doubt was cast upon these early decisions in Lawson v. Bishop, 212 Mich. 691, 180 N.W. 596, but in that case plaintiff had remained in possession for over 15 years and, therefore, the case was decided under subsection 3 of the statute without mention of decisions based upon subsection 2, which were followed in the later decision of John Widdicomb Co. v. Card, 218 Mich. 72, 187 N.W. 308, 22 A.L.R. 545. The statute would serve no purpose if it could be invoked only where the tax deed was valid. Its protection, therefore, extends to all instances where defendant merely claims...