Dolph v. Norton

• Citation: 158 Mich. 417,123 N.W. 13
• Parties: DOLPH v. NORTON.
• Decision Date: 05 November 1909
• Court: Supreme Court of Michigan

158 Mich. 417
123 N.W. 13

DOLPH
v.
NORTON.

Supreme Court of Michigan.

Nov. 5, 1909.

Appeal from Circuit Court, Ontonagon County, in Chancery; Samuel S. Cooper, Judge.

Action by Norman J. Dolph against Dennis J. Norton. From a judgment dismissing the bill, and quieting defendant's title as prayed in the cross-bill on defendant's payment to complainant of a specified sum, complainant appeals. Affirmed.

The descriptions of the land involved in this suit are the S. E. 1/4 of S. W. 1/4, the E. 1/2 of S. E. 1/4, and S. W. 1/4 of S. E. 1/4, of section 23, in town 48 N. of range 40 W. Complainant is grantee of one John McRae, who obtained a deed for these lands from the Auditor General, which deed was dated December 6, 1901, and purported to convey said lands for taxes levied thereon for the years 1896 and 1897, and conveyed the same to complainant December 21, 1905. Defendant is grantee in the last recorded deed in the regular chain of title of all of said lands except certain two acres thereof. As to this two acres defendant sold and conveyed it to the township of McMillan May 13, 1897, by deed recorded January 14, 1898. The said McRae caused a notice to be served on the defendant on July 18, 1903, proof of service of which notice was returned and filed in Ontonagon county July 21, 1903. A copy of said notice is here set out: ‘Notice. To the owner or owners of the land herein described, and to the mortgagee or mortgagees named in all undischarged recorded mortgages against said land or any assignee thereof of record, and to Dennis J. Norton. Take notice that sale has been lawfully made of the following described land, situated in the county of Ontonagon, state of Michigan, for unpaid taxes thereon, and that the undersigned has title thereto under tax deed issued therefor, and that you are entitled to a reconveyance thereof at any time within six months after service upon you of this notice, upon payment to the undersigned, of all sums paid upon such purchase, together with one hundred per cent. additional thereto, and the fees of the sheriff for the service or cost of publication of this notice, to be computed as upon personal service of a declaration as commencement of suit, and the further sum of five dollars for each description, without other additional costs or charges. If payment as aforesaid is not made, the undersigned will institute proceedings for possession of the land, the description of which is as follows: S. E. 1/4 of S. W. 1/4, E. 1/2 of S. E. 1/4, S. W. 1/4 of S. E. 1/4 of Sec. 23, town 48, range 40. Amount paid, $39.82, tax for years 1896 and 1897. Yours respectfully, John McRae. Place of Business: Ewen, Michigan. Dated July 14, A. D. 1903.’ This notice was not served on the township. The bill of complaint charges that defendant did not redeem the land or any of it, that said McRae's title thereto became complete and absolute, but that said defendant, ‘disregarding the rights of your orator in the matter, and conspiring wrongfully to injure your orator by asserting title to all of said land except said two acres, claims to be the owner thereof, and pretends that your orator has no title thereto, which claim and pretense constitute a cloud upon the title of your orator to his great damage, to wit, upwards of $500.’ The relief prayed is that all right and title of said defendant to said lands may be decreed to be barred by the said conveyance to McRae and the service of said notice, and that complainant may be decreed to have a perfect and indefeasible title to the said premises. The bill does not charge that the land is occupied, or that it is unoccupied. Defendant in his answer asserts ownership in fee simple to the lands except the portion belonging to the said township, and that the said tax titles are still subject to redemption by defendant, for the reason that the notice served upon him is invalid, and not in compliance with the governing law, and that no legal notice was ever served upon him or upon any officer of said township. He tenders and offers to pay to complainant any and all sums of money which the court shall find due to him to redeem said lands from said tax sales. Affirmative relief is asked, viz., that defendant may redeem the lands, and that complainant be decreed to surrender his said tax titles. In the answer no reference is made to the occupancy of the land. There is no averment that defendant, or any one else, is in actual possession thereof. In the answer to the cross-bill it is admitted that no notice was ever served upon the township of McMillan...