Case v. Case

• Decision Date: 11 July 1867
• Citation: 16 Mich. 12
• Court: Michigan Supreme Court
• Parties: R. E. Case v. J. M. Dean et al

16 Mich. 12

R. E. Case v. J. M. Dean et al

Supreme Court of Michigan

July 11, 1867

April 3, 1867; April 4, 1867; April 5, 1867, Heard [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to St. Joseph circuit.

This was an action of ejectment by the owner of the fee, brought against the plaintiff in error, who claimed the premises by virtue of two deeds from the auditor-general, made on sales for the years 1856 and 1857.

The tax deeds had been recorded in the counties where the land was situated, more than two years before the commencement of suit.

The plaintiff below obtained judgment in the circuit court.

The case comes up on numerous exceptions taken to the rulings of the court below, and which are stated in the opinion.

Judgment reversed, with costs, and a new trial awarded.

H. F. Severens and G. V. N. Lothrop, for plaintiff in error:

1. It was not competent to show by witnesses the actual footing of values of real estate on the assessment roll.

a. The final aggregate of values of real estate is fixed by the board of supervisors. This then becomes the legal basis for the assessment of taxes: Laws 1853, § 27, p. 137; § 31, p. 138.

It is to be observed that no footing of the valuation is required by law. The footing is but an act of computation. The roll is legally certain without it.

The supervisors, by their process of equalization, determine what shall stand as the aggregate for the purpose of levying the taxes. This they may do either by stating the per cent to be added or deducted, or by completing the computation themselves and stating the result.

They are also required to determine and state the total aggregate of real and personal estate of each town as determined by them: Laws 1853, §§ 29, 30, p. 137.

This must be taken as the final and authoritative basis for the levy of taxes, and not subject to any further remission: 7 Barb. 127; 7 Id. 133; 16 Id. 244; 19 Id. 22; 21 Id. 207.

b. These observations apply to the evidence put in from the blank pages of the assessment rolls. It seems to have been assumed that there were footings made by the town assessor. But there is no evidence of this. Even if there were, it would be but a volunteer act of the assessor, and of no obligation, validity or force whatever. It was utterly immaterial.

Yet this evidence constitutes an important part of the foundation on which the counsel for plaintiffs below, and the court, placed their case.

2. The plaintiffs below were allowed to prove what is called a "practice" among bidders in St. Joseph county, not affecting the land in question, nor including the defendant below.

It is not necessary for us to consider what might be the effect of a conspiracy to deter bidders brought home to Mr. Case. That is not the thing proved or offered to be proved.

The plaintiffs sought to show, 1st, that persons present at the sale frequently proclaimed "That is my land;" 2d, that this frequently led to a withdrawal of competing bids.

There is nothing unlawful in such acts. They do not constitute a conspiracy. They bind no one. The state does not suffer. At any rate, so far as the defendant below was concerned, the matter was res inter alios.

No evidence was given connecting either the defendant or the land in question with the acts proven. Without such a foundation the acts of entire strangers cannot be admissible: 1 Greenl. Ev., § 111; 9 Mich. 434; 4 Pick. 108.

Whether the acts complained of would have authorized the county treasurer in adjourning the sale, or in refusing to receive the bids of certain parties, does not concern us here.

As he proceeded with the sale in good faith--and as the defendant below bought in good faith, and received his deed on such sale--it cannot be impeached by the misconduct of strangers, if indeed any misconduct there were.

3. The defendant below showed title to the northwest quarter of section 26 by two tax deeds for taxes of the years 1856 and 1857 respectively.

He also showed title to the north half of the southwest quarter by a tax deed for taxes of 1857. These were prima facie evidence of title.

But the plaintiffs below sought to invalidate these deeds by alleged errors or irregularities in the proceedings. These we will now examine in their order.

1. Deed for taxes of 1856 on northwest quarter of section 26. The alleged error in this case is, that a computation shows that the state, county and township tax, $ 4.43, is one dollar too much.

This is conceded. But by an examination of the whole tax, we claim that the total tax is not too large.

It appeared that the district school tax for 1856, properly levied on this land, was $ 1.43. This leaves nothing for the mill tax, which the supervisor was bound to levy: 1 Comp. Laws, § 2350.

The valuation of this land in 1856 was $ 1,000; and the mill tax on this would be $ 1. This, added to the amount called state, county and town taxes, would make the aggregate of that tax correct. And this mill tax can be found nowhere else. But it is said that the mill tax should be placed in the column with school taxes. So the statute requires: Laws 1853 § 36, p. 139.

But we claim that this is directory. It is a provision not for the protection of the tax payer, but for the convenience of the public officers: 2 Mich. 498; 7 Barb. 139; 6 McLean 418; 21 Pick. 64.

The tax payer is not prejudiced by an error in this respect. It was assumed by the court below that he might be prejudiced by the mixing of one tax with others which were invalid; that he would wish to pay the valid ones and refuse to pay the other.

Our reply is, that in such case the confusion of the void tax with others makes the whole void, and the tax payer is excused from paying any of them: 13 Mich. 414; 4 Id. 157.

4. Deed for taxes of 1857 on northwest quarter of section 26.

Two errors seem to be claimed to exist in the taxes for this year.

a. The first is that the sum raised for township charges ($ 245.04) was too large.

The only evidence relied on as tending to show this is, we suppose, the clerk's certificate of the amount voted at the annual township meeting, viz., $ 200.

This does not tend to show that this was the only money for township charges that the supervisor was lawfully required to levy. It does not overthrow the statutory presumption of regularity. For it is perfectly consistent that other sums for township expenses might be regularly certified to the supervisor.

And though no certificate but the one for $ 200 is found, yet on the papers found in the supervisor's office there are distinct traces that other sums were certified. Thus the memorandum of $ 17 on the $ 200 certificate, and the paper signed by Oakes, the deceased supervisor. It is true these are only memoranda made by the supervisor in bringing together the sums that he was to levy, but they imply the certificates which brought such sums to his attention. The $ 200, with the other sums named on these memoranda, it will be noticed, make $ 245.

b. But, second, it is said that, allowing this $ 245 to be correctly raised, the taxes on the two parcels of land for 1857 are in excess fifteen cents in one case, and six cents in the other.

To this we answer, first, that the only evidence that $ 245 was the full sum assessed as township charges is the warrant annexed to the collector's roll.

But this is not proper evidence of that fact. The designation of the disposition of the funds in the warrant is for the convenience of the collector. It is not controlling. The law makes the actual disposition. And no mistake or perversion of the lawful disposition in the warrant will change the legal right of state, county, town or school district.

It follows, therefore, that the plaintiff below was bound to go further. He was bound to give evidence sufficient to show either, first, that township charges to an amount sufficient to warrant the tax and which might have been legally certified to the supervisor, did not, in fact, exist; or, second, that, though such charges did exist, they were not, in fact, certified to the supervisor.

The plaintiff below gave no such evidence.

But, on the contrary, the defendant gave in evidence the fact that there was the sum of $ 37.39 charges for a town line road which might have been certified, and which, if certified and levied, would satisfactorily account for the alleged discrepancy.

We were then entitled to the full benefit of the statutory presumption of regularity. The plaintiff below showed no facts absolutely inconsistent with regularity; he therefore failed to overthrow the presumption: 2 Mich. 495; 4 Id. 158; 9 Id. 338; 13 Id. 415.

c. But, finally, even if we concede that there is an excess of fifteen cents or six cents, does this avoid the sale?

It is not an excess arising from the levy of an unauthorized tax; it is, if an excess at all, only an excess arising from an error in computation.

This is, we think, a material distinction. While the former avoids a tax, the latter should not.

We are aware that Elwell v. Shaw, 1 Greenl. 335, and Huse v. Merriam, 2 Greenl. 375, are usually cited as authority to a contrary doctrine. But compare 10 Mass. 105; 20 Pick. 424; 4 Mich. 140.

Riley & Shipman, for defendants in error:

1. There was no error in the admission of evidence to show the true footing of values of real estate on the assessment roll.

2. The charge of the, court that if the assessment and sale of the premises in question was too much by 99 cents, the sale was therefore void, was correct. No law of the land authorizes the sale of property for any amount in excess of the tax it is legally called upon to bear: 4 Mich. 157; 1 Mass. 181; 10 Id. 115; 13...