Eaton v. Chesebrough

• Decision Date: 01 August 1890
• Citation: 82 Mich. 214,46 N.W. 365
• Court: Michigan Supreme Court
• Parties: EATON v. CHESEBROUGH.

46 N.W. 365

82 Mich. 214

EATON v. CHESEBROUGH.

Supreme Court of Michigan

August 1, 1890

Appeal from circuit court, Wayne county; CORNELIUS J. REILLY, Judge.

Gray & Gray, for appellant.

CAHILL, J.

This is a suit, brought for an alleged breach of covenant against incumbrance in a warranty deed given by defendant to plaintiff for the recovery of the amount paid by plaintiff for city taxes after the delivery of the deed. On May 15 1889, defendant was the owner of lots 57 and 58, and the northerly 10 feet of lot 105, section 3, governor and judge's plan of the city of Detroit. On that date plaintiff made defendant a written offer for such property of $1,000 cash on acceptance of the offer, and $20,000 on July 1, 1889, all papers pertaining to title to be approved by W J. Gray at defendant's expense. Defendant accepted the offer in writing on May 22, 1889, and plaintiff paid defendant $1,000 down, and a new contract was drawn up and executed by the parties. This contract was to the same effect as the written offer and acceptance. It contained nothing about taxes nor about the possession of the premises before July 1st. It also contained the following clause: "It is understood that the title to the last-described property in Detroit shall be examined by William J. Gray, of Detroit and, if not certified by him as good, then this agreement shall be void, and said $1,000 paid by the second party be returned to him by the first party." On or about June 25, 1889, Mr. Gray approved the title, and defendant was notified. In the afternoon of July 1, 1889, the parties met by appointment, and plaintiff paid defendant $20,000, the balance of the purchase price. Defendant executed and delivered to plaintiff a warranty deed. Immediately after the description of the property in the deed the following clause appears: "This deed is made in pursuance of contract of sale made by proposition of the grantee herein, dated May 15 1889, and accepted by grantor herein, May 22, 1889." After the delivery and acceptance of the deed, and on July 12, 1889, the plaintiff called upon the defendant to pay the city taxes for the year of 1889, amounting to $260.08, which defendant refused to do. Thereafter, and on July 20th, the plaintiff paid the taxes in question, and brought this suit to recover the same from Chesebrough under the covenants of his deed. The case was tried before the Honorable C.J. REILLY, circuit judge, without a jury, who, at the request of the parties, made and filed a written finding of facts substantially as herein stated, and, as a conclusion of law, he found that the plaintiff was not entitled to recover. In addition to the facts already stated, the following facts appear in the judge's finding: "(7) That the board of estimates of the city of Detroit, on April 15, 1889, duly approved and adopted their final estimates of the amounts to be raised by taxation for city purposes in 1889, aggregating $2,236,463.54; (8) that the common council of the city of Detroit, on April 16, 1889, accepted the report of the board of estimates, and duly levied and assessed upon the real and personal property in the city of Detroit the sum of $2,236,463.54, as the city taxes for 1889 (9) that on May 1, 1889, the assessment rolls for the city of Detroit for 1889 were finally adopted and duly confirmed by said common council, the total assessed valuation as so confirmed being $165,505,790; (10) that said premises were duly assessed upon said rolls, and so confirmed; (11) that the board of assessors spread upon the said assessment rolls for the city taxes of 1889 the sum so levied, and that said premises were assessed for taxes as follows, which said amounts were actually extended upon the rolls between June 1, and June 20, 1889, * * * [aggregating $260.08;] (12) that the tax-rolls for the city taxes of 1889 were delivered with proper warrants of collection to the city receiver of taxes on June 29, 1889, and were ready for payment at the opening of business at 9 o'clock in the morning of July 1, 1889;" "(16) that the said premises were vacant property on May 15, 1889, and so remained till after July 10, 1889; (17) that the fiscal year for the city of Detroit, for which said taxes were paid, began on the 1st of ...