Dean v. Michigan Dept. of Natural Resources, Docket No. 19355

• Decision Date: 09 June 1975
• Docket Number: No. 2,Docket No. 19355,2
• Citation: 233 N.W.2d 135,61 Mich.App. 669
• Parties: Penny DEAN, Plaintiff-Appellant, v. The MICHIGAN DEPARTMENT OF NATURAL RESOURCES et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 135

233 N.W.2d 135

61 Mich.App. 669

Penny DEAN, Plaintiff-Appellant, v. The MICHIGAN DEPARTMENT OF NATURAL RESOURCES et al.,

Defendants-Appellees.

Docket No. 19355.

Court of Appeals of Michigan, Division No. 2.

June 9, 1975.

Released for Publication Sept. 30, 1975.

Sinas, Dramis, Brake, Turner, Boughton & McIntyre, P.C., by Kenneth G. McIntyre, Lansing, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Warren R. Snyder, Asst. Atty. Gen., for Dept. of Natural Resources.

Donald C. Conway, Flint, for Genesee County Treasurer.

Wade D. Withey, Flint, for Flint Treasurer.

Warren F. Krapohl, Flint, for Adle and Adams.

Before DANHOF, P.J., and McGREGOR and WALSH, JJ.

McGREGOR, Judge.

On October 3, 1973, the Ingham County circuit court granted defendants' motion for accelerated judgment against plaintiff, who had instituted the action to set aside a deed by the State of Michigan, after the state had acquired title pursuant to a petition for failure to pay allegedly delinquent Genesee County taxes.

Plaintiff, the owner of certain real estate in Flint, Genesee County, had failed to pay the 1964--65 county taxes. The State Treasurer filed a petition in Genesee County circuit court to enforce the payment of these delinquent taxes pursuant to the General Property Tax Act, 1893 P.A. 206, as amended, M.C.L.A. § 211.1 Et seq.; M.S.A. § 7.1 Et seq.

On April 4, 1967, the Genesee County circuit court issued a judgment that the amount of taxes, interest, fes, etc. alleged to be delinquent was valid, and that, in default of payment, the property could be sold at a tax sale; further, if the property were not redeemed within one year of such a sale, to be held no later than the first Tuesday of May, 1967, title would become absolute in the state.

Sale of the property was held on the first Tuesday of May, 1967. A deed conveying the property from the State Treasurer to the State of Michigan was executed on June 3, 1968, and was recorded with the Register of Deeds for Genesee County on July 31, 1968.

While these events took place concerning the county tax delinquency, plaintiff also failed to pay her 1964--65 City of Flint property taxes. In January, 1968, plaintiff paid $239.63 for unpaid city taxes. She testified, however, that she believed she was redeeming her property from the 1967 tax sale by making a full payment of all 1964--65 taxes which she owed. Plaintiff contends that the Flint City Treasurer was responsible for collecting both city and county taxes for property situated in Flint. From July, 1968, through September, 1971, plaintiff was compelled to pay monthly 'rental payments' of from $100 to $200 per month for the use of her home, to the State of Michigan and its grantee.

On April 23, 1969, at a public auction, Dudley Adle purchased the property from the state for $10,000; he subsequently sold it to Albert G. Adams. Both of these buyers are codefendants.

On October 4, 1972, defendant filed a complaint in the Ingham County circuit court against the defendants in the present case, from which we gain the following facts:

Count One of the complaint charged that the state deed was invalid because of an effective redemption by plaintiff in 1968;

Count Two charged the state with unjust enrichment for retaining the $10,000 proceeds from the 1969 sale, in light of the fact that the amount of delinquent taxes, interest and expenses was much lower than that amount.

On October 18, 1972, defendants moved to dismiss plaintiff's complaint, pursuant to GCR 1963, 116. On December 8, 1972, a hearing was held on this motion. On October 3, 1973, the court, treating defendants' motion as one for accelerated judgment, granted the motion, on the grounds that the tax sale was effective and that redemption was not. The court also rejected plaintiff's claim for unjust enrichment. On October 17, 1973, an order for dismissal was entered.

Plaintiff alleges that the trial court erred in considering the state's motion for accelerated judgment under GCR 1963, 116.

Defendants' motion was apparently made and granted on the ground of subsection 5 of GCR 1963, 116.1, which states:

'In a party's first responsive pleading, or by motion filed not later than his first responsive pleading, a party may demand that service of process be quashed or that judgment be entered dismissing 1 or more claims asserted against him upon any of the following grounds:

'(5) the claim is barred because of release, payment, prior judgment, statute of limitations, statute of frauds, infancy, or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.'

Although defendants' motion was labelled a motion to dismiss, it was proper to treat it as an accelerated judgment motion, since its purpose was clear. Jamens v. Shelby Township, 41 Mich.App. 461, 200 N.W.2d 479 (1972).

Supporting the procedural aspect of defendants' motion, no affidavit or other evidence is required if the grounds for dismissal appear on the face of the pleading attacked, I.e., plaintiff's complaint. Although the complaint asserts that the January, 1968, payment satisfies all of the 1964--65 taxes due, plaintiff's Exhibit 'A' is clearly a redemption certificate only for City of Flint taxes due. Exhibit 'B' is a June, 1968, deed from the State Treasurer to the State of Michigan. Thus, plaintiff has failed to allege that she had paid all taxes owed, including the Genesee County delinquent taxes which would support a tax sale.

Plaintiff further contends that the trial court erred in holding that plaintiff is precluded from challenging the state's divestiture of her real estate interest.

Redemption states should be liberally construed in favor of persons seeking to redeem property. The prior circuit court judgment and underlying state title and deed are not subject to plaintiff's collateral and fatally untimely attack. No appeal was made from the Genesee County circuit court judgment. No action was commenced within the 6 months' deadline to set aside the State Treasurer's deed to the State of Michigan. Plaintiff commenced her action over 4 years After the execution of the deed, contrary to M.C.L.A. § 211.431; M.S.A. § 7.661.

Plaintiff cannot attack collaterally the first circuit court judgment. The deed and the title are absolute, since no redemption was made. Under M.C.L.A. § 211.431; M.S.A. § 7.661, there is an absolute 6 months statute of limitations...