Butcher v. Burton Abstract Title Co.

• Decision Date: 07 March 1974
• Docket Number: Docket No. 17063,No. 1,1
• Citation: 52 Mich.App. 98,216 N.W.2d 434
• Parties: Robert E. BUTCHER and Gladys K. Butcher, Plaintiffs-Appellants, v. BURTON ABSTRACT TITLE CO., a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 434

216 N.W.2d 434

52 Mich.App. 98

Robert E. BUTCHER and Gladys K. Butcher, Plaintiffs-Appellants, v. BURTON ABSTRACT TITLE CO., a Michigan corporation, Defendant-Appellee.

Docket No. 17063.

Court of Appeals of Michigan, Division No. 1.

March 7, 1974.

Released for Publication April 10, 1974.

Robert E. Butcher, Lincoln Park, for plaintiffs-appellants.

Reid, Gilmore & Reid, Detroit, for defendant-appellee.

Before LESINSKI, C.J., and BASHARA and VanVALKENBURG,* JJ.

LESINSKI, Chief Judge.

The plaintiffs, Robert E. Butcher and Gladys K. Butcher, appeal from an order issued by Wayne County Circuit Judge Charles Kaufman granting defendant Burton Abstract and Title Company's motion for summary judgment. The facts precipitating this appeal are not disputed.

The plaintiffs purchased property in Grosse Ile Township on June 16, 1966. Defendant issued its owner's title insurance policy covering the property dated July 21, 1966. The terms of the policy contract insured the plaintiffs 'against all loss or damage * * * which the insured shall sustain by reason of the failure or unmarketability of the title * * * excepting only such liens, incumbrances and other matters as set forth * * * and subject to the conditions and stipulations * * * hereto annexed'. The first annexed condition reads:

'The Burton Abstract and Title Company will, at its own cost, defend the insured in all actions or proceedings founded on a claim of title or incumbrance prior in date to this policy, except as to items specifically excluded.'

Plaintiffs claim that various charges not excepted by the policy instituted by the township of Grosse Ile, and attorney's fees expended in previous litigation contesting aspects of those charges, give rise to damages under the policy contract.

The charges in question placed against the property by the township of Grosse Ile include the following:

(1) annual ad valorem taxes assessed against the township of Grosse Ile by the Grosse Ile sanitary interceptor drain and treatment plant drainage district, pursuant to chapter 20 of the drain code of 1956, to pay the costs of the sewage plant (the first payment was due December 1, 1965 and had been paid by the previous owner; 29 additional assessments would be required to retire the 30-year sewer bonds);

(2) annual ad valorem taxes assessed against Grosse Ile Township to retire Grosse Ile Board of Education school bonds approved in 1955, 1958, and 1963 by the electorate, which taxes are due each December 1st;

(3) a special assessment exceeding $2,000 subjected by a township ordinance (effective June 27, 1966), passed to help pay for a sewer installed in front of plaintiffs' property in 1965, and various sewer connection charges pursuant to this ordinance.

After being informed by the township of the sewer charges on September 27, 1967, 14 months after the title insurance policy was issued, the plaintiffs began a suit prior to the instant litigation which contested the charges imposed by the township ordinance mentioned above and the validity of the ordinance itself as well as the validity of M.C.L.A. § 123.192; M.S.A. § 5.2767(102) which required plaintiffs' to connect to the public sewer and made the property subject to charges pursuant to such connection. For the history of this prior litigation, see Butcher v. Grosse Ile Twp., 24 Mich.App. 389, 180 N.W.2d 367 (1970); 387 Mich. 42, 194 N.W.2d 845 (1972); 409 U.S. 814, 93 S.Ct. 69, 34 L.Ed.2d 71 (1972). The only relevance of this prior suit to the present action is that the sewer finance ordinance was upheld, but the sewer connection requirement and charges were prohibited in the face of an adequate private sewage disposal system. Therefore, in this action, the plaintiffs do not claim that their damages include charges arising from the township finance ordinance, which they did not have to pay, but only that the defendant should have complied with their request to enter the previous action and defend their property against the alleged encumbrances not excepted by the policy. In relation to the third charge in question mentioned above, they thus claim only attorney fees expended in the litigation over the sewer finance ordinance.

The critical question presented by these facts is whether the charges placed against plaintiffs' property by the township of Grosse Ile constitute...