Closser v. Abraham

• Decision Date: 04 May 1938
• Docket Number: No. 59.,59.
• Citation: 279 N.W. 509,284 Mich. 272
• Parties: CLOSSER v. ABRAHAM.
• Court: Michigan Supreme Court

284 Mich. 272

279 N.W. 509

CLOSSER

v.ABRAHAM.

No. 59.

Supreme Court of Michigan.

May 4, 1938.

Action of ejectment by Helen L. Closser against Arthur G. Abraham. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

BUSHNELL, J., dissenting in part.

Appeal from Circuit Court, Alcona County; Neil E. Reid, judge.

Argued before the Entire Bench.

John F. McCarthy, of Detroit (Dayton W. Closser, of Detroit, of counsel), for appellant.

Neithercut & Neithercut, of Flint, for appellee.

BUSHNELL, Justice.

This is an action in ejectment, brought by plaintiff, the conceded holder of the original title to 240 acres of uncultivated land in Alcona county. She obtained her title by deed dated September 13, 1934, for which she paid the sum of $50. Defendant claims title thereto through four state tax deeds issued to him in 1927, covering taxes for the years 1921 and 1922 on three of the parcels, and for the same years and 1923 on the remaining parcel. Defendant also paid the taxes for the years 1924, 1925, and 1926. The land being unoccupied and uninclosed at the time defendant Abraham obtained his tax deeds, he caused cards to be printed, reading, ‘No hunting or trespassing allowed. Private property. Art Abraham,’ and posted about 400 of them on trees standing on property. He and his associates organized the ‘Sand Lake Hunting Club,’ and they have from time to time used the property for the purposes indicated by this name. Abraham also inclosed the entire property by a single wire and erected gates at the entrance.

Abraham lives in the city of Flint, where for a number of years he has operated a sports goods store; and, although not engaged in the business of buying tax lands, he realized that it was necessary to give notice to the party or parties in interest to redeem said lands from the tax sales. See Comp.Laws 1929, § 3535 et seq. The parties who were entitled to notice, so far as indicated by this record, were Claude Briggs and Louis A. Nall, trustees under a trust agreement for the benefit of the Central Michigan Farm Homes Company, Clyde L. Woodliff, assignee of record of a certain mortgage, Edmund M. Sloman, holder of a second mortgage, and one Fred C. Goodrich, whose interest is not disclosed in the record. At the trial evidence was received to show that the mortgage held by Woodliff had been assigned some time ago to the Great Lakes Finance Corporation. This assignment, however, had not been recorded at the time Abraham obtained his tax deeds.

Abraham testified that he made several trips to Detroit in an attempt to locate Briggs, Nall, and Woodliff. He said that while in Detroit he consulted the telephone directory, but that he did not look at the city directory. Apparently at the time he did not know the given names of either Briggs or Nall. Being unable to find them or Woodliff in 1927, he went to Harrisville, the county seat of Alcona county, where the land was situated, and turned the matter over to Judge Herman Dehnke, who was then still practicing law, prior to becoming judge of the Twenty-third judicial circuit on January 1, 1928. Judge Dehnke testified that his law office records showed that Goodrich was served personally as to some of the parcels on October 7, 1927, the Title Guaranty & Casualty Company (whose interest is not clearly indicated) was notified by personal service on its general manager on November 14, 1927, and Edmund Sloman on November 1st; that under date of December 15, 1927, the Wayne county sheriff, to whom Judge Dehnke had sent the tax notices for service, returned that he was unable to locate the Great Lakes Finance Corporation, Clyde Woodliff, and Claude Briggs and Louis Nall, trustees. Because of failure to find the necessary parties and serve them personally, notices were published, in compliance with the statute, in the Alcona County Review.

When Judge Dehnke sent the tax notices to the Wayne county sheriff, he gave the address of Woodliff, Briggs, and Nall as 519 Hammond Building, but the sheriff could not locate them at this address. About 6 1/2 weeks prior to sending these notices, Judge Dehnke had been notified by the Wayne county sheriff that Woodliff had been served in a matter that the judge was handling for one Moore. Nine days after sending these notices, he was notified by the same officer that Nall had been served in the Moore matter. However, Judge Dehnke, after being informed that service could not be made on these parties in the Abraham matter, did not call the sheriff's attention to the fact that they had been served in the Moore matter without any difficulty.

The city directory was not examined by Abraham. Had this been done, it would have disclosed the addresses of some of these parties. There was at the time a copy of the Michigan State Gazetteer in the office of the county clerk of Alcona. Examination of that book would have shown that Woodliff was a contractor whose address was 2755 Carter avenue, in the city of Detroit.

The trial judge, in commenting upon this situation, stated that there was no showing that either Abraham's attorney or the sheriff of Alcona county knew about the existence of the State Gazetteer in the county clerk's office or ever had access to it. But Judge Dehnke, when asked how he ascertained the residence of the parties, said: ‘Well, on checking over my file I find a copy of a letter that I wrote to the sheriff of Wayne county in which I gave him certain addresses. I probably checked the conveyances in the register's office to see if the deed or mortgage gave the address; and also the State Gazetteer that was in the county clerk's office at that time.’

In Wolf v. McDonald, 244 Mich. 59, at page 63, 221 N.W. 173, 175, the court said: ‘The statute contemplates that one who purchases a tax title must make an honest and diligent effort to ascertain the whereabouts of the owner in order that he may be served with notice of the sale and have an opportunity to redeem.’

Also, the following was said in Winters v. Cook, 140 Mich. 483, 103 N.W. 869, 871: ‘It [the statute] imposes upon the purchaser the obligation of good faith, and an earnest effort to ascertain the owner and his whereabouts, and an honest attempt to give him actual notice and the statutory opportunity.’

We are obliged to apply the rule of diligence and are forced to conclude that there was a lack of diligence in the instant matter and that Abraham has not perfected his tax title as is required by the statute. See Gustin v. Bonehead Hunting Club, 280 Mich. 296, 273 N.W. 575.

This brings us to the remaining question stated by appellee as follows: ‘Was it necessary that plaintiff deposit the amount of money set forth in the notice for reconveyance with the clerk of the court before filing an action in ejectment where the land had been sold on state tax land deed?’

Appellee contends that the ruling in Powell v. Pierce, 168 Mich. 427, 134 N.W. 447, requires the holder of the original title to redeem in order to maintain ejectment, even though the tax title purchaser has failed to perfect his title by giving the necessary statutory notice. See, also, Closser v. McBride, 182 Mich. 594, 148 N.W. 756. Appellant argues that the rule of the Powell Case, supra, is not applicable in view of Comp.Laws 1929, § 3466, which provides: ‘The right to recover possession of any land * * * by any person claiming through or under any deed executed by the auditor general or by virtue of a certificate of purchase issued under the provisions of this act shall be forever barred * * * by failure of such tax title purchaser, his heirs or assigns, to give the notice or notices required by this act for a reconveyance of the premises within the above specified period of five (5) years. In case of such failure to give the required notice for reconveyance within the period of five (5) years from the date such purchaser, his heirs or assigns shall become entitled to a tax deed to be issued by the auditor general, the person or persons, claiming title under tax deed or certificate of purchase shall be forever barred from asserting such title or claiming a lien on the land by reason of such tax purchase.’

This section was not involved in the Powell Case, inasmuch as defendant's grantor there acquired his tax deeds prior to the enactment of the statute in 1907. Holmes v. Soule, 180 Mich. 526, 147 N.W. 621. However, appellant points out that defendant Abraham acquired his tax deeds in 1927, and that more than five years elapsed between that time and the commencement of the present action. He contends, therefore, that appellee has no ‘right to recover possession’ of the lands in question and is ‘barred from asserting’ title under his tax deeds. Assuming this to be true, it does not follow that the requirement of redemption has been abrogated by section 3466. Defendant is in actual possession of the lands in question and there is no evidence that either plaintiff or any of its predecessors in title was ousted by reason of defendant's entry. Plaintiff must therefore succeed, if at all, upon the strength of her own title and not upon the weakness of that of defendant. See Brown v. Eckel, 259 Mich. 551, 244 N.W. 160, and cases therein cited.

As stated in White v. Dunsmore, 167 Mich. 542, 133 N.W. 523, foreclosure by the state of its tax lien destroys the original or government chain of title; and subsequent sale by the state of its title to a third party at most confers upon the holder of the original title the privilege of redeeming from the tax sale and thus becoming invested with the title of the state. See, also, Grand Rapids Trust Co. v. Doctor, 222 Mich. 248, 192 N.W. 641. Moreover, there is nothing in section 3466, supra, which enlarges plaintiff's possessory rights. Therefore, until redemption is made, plaintiff does not have sufficient title to enable her to eject defendant even though the latter may be barred from asserting the title of his tax deed or claiming a lien on the...