D. & W. Rottschafer, Inc. v. City of Grand Rapids
| Decision Date | 01 October 1956 |
| Docket Number | No. 37,37 |
| Citation | 78 N.W.2d 624,346 Mich. 687 |
| Parties | D. & W. ROTTSCHAFTER, Inc., a Michigan corporation, Plaintiff and Appellant, v. CITY OF GRAND RAPIDS, a municipal corporation, Defendant and Appellee. |
| Court | Michigan Supreme Court |
Kingston & Porter, Grand Rapids, for plaintiff-appellant.
George R. Cook, City Atty., Claude Vander Ploeg, Deputy City Atty., Grand Rapids, for defendant-appellee.
Before the Entire Bench.
Plaintiff filed its declaration on January 13, 1953, alleging that defendant city wrongfully claimed ownership and right of possession to 18 lots in Morgan's Addition to the city of Grand Rapids and demanded judgment for the possession of said lots and damages in the sum of $300.
Defendant answered, stating that it had title by virtue of a tax deed dated January 4, 1932, and a notice by purchaser at tax sale served July 27, 1933, and that since March 15, 1934, defendant city has been in continuous, open and hostile possession.
After hearing testimony and arguments of counsel, the judge of the Superior Court of Grand Rapids dismissed plaintiff's declaration. Plaintiff appeals.
Defendant city became the owner of these lots in 1899 by virtue of a tax sale and the city quit-claimed these lots to plaintiff's predecessor (D. & W. Rottschafer Real Estate, Inc.) on May 9, 1929, subject to the following provision set forth in said deed:
'Liens derived from assessment rolls and sidewalk and nuisance rolls in the hands of the City Treasurer for collection; also liens from unpaid assessments returned to the City Treasurer and held by him for collection or sale of property, excepted.'
The lots in question were sold to defendant city at tax sales held in 1930, 1931, 1932 and 1933, for failure to pay state and county taxes.
The city commission in 1934 removed these lots from the tax roll, declaring they should be held for public purpose until sold, and thereafter no city, school, or county taxes were levied on the lots.
The vice-president, and also the treasurer, of plaintiff corporation testified, and the record establishes, that they were aware from 1932 to 1952 that the city claimed ownership and title to these lots. In 1952 the vice-president, William Rottschafer, sought the aid of the plaintiff's attorney and informed the attorney that when the scavenger sale was held in 1939 plaintiff corporation, through his efforts, contacted the city in regard to these lots and was informed by the city that it was not going to relinquish title to the lots; that it was not going to place same on the scavenger list, and that it would continue to hold title and ownership in said lots.
In regard to this 1952 conference, the attorney testified:
'He (William Rottschafter) went on to say that the city had made no public use of it for approximately 10 years or more and that he thought it was time that they had an opportunity to get the property back, and he told me to take the necessary steps to get the property back from the city.'
On October 10, 1952, William O. Rottschafer, Dick Rottschafer, Henry O. Rottschafer and Peter W. Rottschafer, as the surviving members of D. & W. Rottschafer Real Estate, Inc., conveyed to D. & W. Rottschafer, Inc., the present plaintiff, lots 5 and 6 and 8 to 23, inclusive, of the lands described.
Lots 74 to 77 were included in the lots obtained by the city through the tax deed in 1932. Plaintiff, in its present action, is not claiming the right to title of lots 74 to 77, thereby recognizing the city's right in 1941 and 1946 to convey lots 74 to 77 to other parties; and, the fact that plaintiff corporation was advised of such sale and made no objection to the city's right to sell same is evidenced by the following testimony of plaintiff's vice-president, William O. Rottschafer:
Further proof that plaintiff corporation acknowledged defendant as title owner of the lots deeded to defendant in the tax deed of 1932 is evidenced by a purchase made in 1941 of 3 of the lots deeded the city in 1932. This purchase was made by the Standard Supply and Lumber Company. The directors of plaintiff corporation are also officers and directors of the Standard Supply and Lumber Company.
That officers of plaintiff corporation were men of extensive experience in the purchasing, sale and ownership of property is disclosed by vice-president Rottschafer's testimony, as follows:
The further testimony of Mr. Rottschafer discloses that the lots in question were in close proximity to the offices of the plaintiff corporation:
The defendant city introduced proof of continuous, open and houstile possession, adverse to the rights or title asserted by plaintiff, and that since March 15, 1934, the city has filled, leveled and graded the premises and licensed the use thereof as a recreation field and has leased the property for other purposes.
Plaintiff, in its...
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