Dumphey v. Hilton

• Decision Date: 19 September 1899
• Citation: 121 Mich. 315,80 N.W. 1
• Court: Michigan Supreme Court
• Parties: DUMPHEY v. HILTON et al.

80 N.W. 1

121 Mich. 315

DUMPHEY v. HILTON et al.

Supreme Court of Michigan

September 19, 1899

Appeal from circuit court, Monroe county, in chancery; Edward D Kinne, Judge.

Petition by Edith Dumphey, as guardian of Azuba Dumphey, to open a decree, pursuant to which her ward's lands were sold for taxes. A demurrer was interposed by Joseph S. Hilton and another. From a decree sustaining the demurrer, petitioner appealed. Affirmed.

The relator was the defendant in Hilton v. Dumphey, 71 N.W. 527. After that decision, relator filed the petition in this case to reopen the decree in chancery rendered in May 1892, under which the lands were sold and bid off to the state. The petition is made by Edith Dumphey, who was appointed the general guardian of Azuba Dumphey in September 1897, and asks for her appointment as next friend to prosecute the petition; that said Azuba is now, and has been for eight years, mentally incompetent; that said Azuba is the owner of, and in actual possession of, said land as her homestead; sets forth the tax proceedings, and alleges that through her mental incompetency, Azuba neglected to appeal from the decree rendered in that case; alleges, on information and belief, that after said decree was rendered her solicitor endeavored to persuade her to pay the taxes so declared to be legal; that, on account of her mental incompetency, she took no further steps either to pay or further contest the validity of the tax, and allowed the premises to be sold. The petitioner then alleges certain irregularities in the tax proceedings, and that Azuba was incapable of realizing the situation, and not responsible mentally or legally for her acts therein. The petitioner offers to pay the tax, interest, charges, and costs of the suits heretofore had in said matter. To this petition a demurrer was interposed and sustained. From this order defendant appeals.

Willis Baldwin and Landon & Lockwood, for appellant.

Randall & Corbin and A. B. Bragdon, for appellees.

GRANT C.J. (after stating the facts).

Practically this is an application to redeem from a tax sale nearly six years after the sale was made and five years after the time for redemption had expired. The statute of 1889 governing this case makes no exception in the case of those under disability, such as coverture, infancy, insanity, and incompetency. It is insisted on behalf of relator 'that the property of an incompetent person or infant cannot be taken without the appointment of a guardian ad litem or some person to act for him.' This is not the rule in tax proceedings, unless the fact that the law now provides for proceedings in chancery, and decree and sale thereunder, has changed it, and made such proceeding subject to the same rules and procedure as other suits, where jurisdiction of the person must be obtained, like those cited in the brief of petitioner. Proceedings to collect taxes are usually proceedings in rem. The fact that the statute authorizes these proceedings to be taken in a court of equity does not make them any the less proceedings in rem. The property alone is described in the petition. Every one knows that his land is subject to taxation. Every one is presumed to know the law. If he fails to pay, he must be held to know that proceedings will be taken to enforce these taxes against his...