Briggs v. Prevost

• Decision Date: 03 June 1940
• Docket Number: No. 13.,13.
• Citation: 293 Mich. 677,292 N.W. 527
• Parties: BRIGGS v. PREVOST et ux.
• Court: Michigan Supreme Court

293 Mich. 677

292 N.W. 527

BRIGGS

v.PREVOST et ux.

No. 13.

Supreme Court of Michigan.

June 3, 1940.

Suit in ejectment to try title by Neva J. Briggs against Medric Prevost and wife. From a judgment for defendants, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Gladwin County; William B. Brown, judge.

Argued before the Entire Bench.

Dayton W. Closser, of Detroit, for appellant.

Oscar W. Baker, Jr., of Bay City, for appellees.

NORTH, Justice.

This is a suit in ejectment to try title. The land, located in Billings township, Gladwin county, consists of a quarter section, excepting a one acre school site. The trial judge held as a matter of law that defendants had valid title, and in effect he directed the jury to render a verdict accordingly. This was done and judgment entered thereon. Plaintiff has appealed. The following questions of law are involved: (1) Were defendants required to prove the regularity of the tax proceedings through which the tax deed was obtained which constituted the origin of their title, before the record of that deed was admissible in evidence? (2) Was there a valid notice to redeem from the tax sale served or published?

Regularity of plaintiff's title is not questioned except defendants assert they are the holders of a prior valid title, derived in the following manner. William Woodby took title from the Auditor General by a tax deed dated May 29, 1912, recorded April 12, 1913. This deed was incident to sale of the land because of non-payment of taxes for 1908. At that time William Sherman, from whom plaintiff obtained her alleged title by quit claim deed in April, 1937, was the owner of the land. Defendants, through mesne conveyances, have record title from Woodby. When defendants offered in evidence the record of the tax deed from the Auditor General to Woodby plaintiff objected on the ground that there was no proof of a valid decree in the tax sale proceedings prior to execution and delivery of the deed to Woodby. The objection was overruled subject to its renewal on motion. On final consideration, there being no showing that the tax sale proceedings were invalid, the court held the record of the tax deed was competent proof, notwithstanding plaintiff's objection.

It is elementary that to prevail in an ejectment proceedings the plaintiff must rely upon the strength of his own title, not on the weakness of defendant's title. Ridgeley v. Roma, 282 Mich. 682, 276 N. W. 872. Clearly in such case a plaintiff could not prevail if defendant had a prior valid title. It follows that the burden of proof of the invalidity of defendant's alleged prior title when established by a prima facie case is upon the plaintiff in ejectment. ‘Where a party seeks to avoid a tax deed by direct proceedings for that purpose, it is for him to substantiate the charge of its invalidity.’ Morrison v. Semer, 164 Mich. 208, 214, 129 N.W. 1, 3. The trial court's ruling was correct.

Appellant's second contention is that the trial court erred in holding defendants had a vested valid title to the land because, appellant asserts, the notice of right to reconveyance by which Woodby sought to perfect his tax title was defective. This notice, directed to William Sherman, was placed in the hands of the sheriff of Gladwin county for service; and on July 10, 1912 he made the following return:

‘State of Michigan,

‘County of Gladwin-ss.

‘I hereby certify and return that after careful search and inquiry I am unable to ascertain the whereabouts or post office address of William Sherman or his heirs, executors, administrators, trustee or guardians of the said William Sherman.

‘Dated July 10, A. D. 1912.

‘William F. Shell, Sheriff of Gladwin County.’

Thereafter notice was published in the Beaverton Clarion, a Gladwin county newspaper. The notice is claimed to be fatally defective because it does not expressly recite that the land is located in ‘Gladwin County, Michigan.’ In this connection appellant cites Tucker v. Van Winkle, 142 Mich. 210, 105 N.W. 607, and Morrison v. Semer, supra. We are of the opinion that in so far as the sufficiency of the notice of the right of reconveyance is concerned, the instant case instead of falling within the rule of the cited cases, clearly comes within Heethuis v. Kerr, 194 Mich. 689, 161 N.W. 910, 914, and other of our decisions of like character which hold that descriptions in such notices need not be letter-perfect. In the Heethuis case Judge Ostrander, writing for the court, said: ‘The test must be, I think, in a case where such a notice is published in a newspaper, whether any of the persons to whom it is addressed, reading it, would be sufficiently advised of all facts which the statute requires the tax title holder to make known to them, and, so tested, this notice as published was, in my opinion, a sufficient one.’

Concerning the requisite of accuracy of description, Mr. Justice Cooley in his work on Taxation says: ‘A more satisfactory rule would seem to be that the...