Farr v. Nordman

• Decision Date: 04 September 1956
• Docket Number: No. 90,90
• Parties: Harold FARR and Evelyn Farr, Plaintiffs and Appellants, v. Amos NORDMAN, Estate Management Corporation, Norman D. Holt, Thomas Vidro, Kent County Treasurer, John B. Martin, Auditor General, and Vera Shipman, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 186

78 N.W.2d 186

346 Mich. 266

Harold FARR and Evelyn Farr, Plaintiffs and Appellants, v. Amos NORDMAN, Estate Management Corporation, Norman D. Holt Thomas Vidro, Kent County Treasurer, John B Martin, Auditor General, and Vera Shipman, Defendants and Appellees.

No. 90.

Supreme Court of Michigan.

Sept. 4, 1956.

Floyd H. Skinner and Alphonse Lewis, Jr., Grand Rapids, for plaintiffs-appellants.

Thomas J. Whinery, Grand Rapids, for defendant-appellee Amos Nordman.

Claude Vander Ploeg, Asst. Prosecuting Atty., Grand Rapids, for Vera Shipman and Thomas Vidor, defendants.

Before the Entire Bench.

KELLY, Justice.

Plaintiffs and appellants brought action to set aside a tax sale of two lots, of which they were the owners in 1947.

In December, 1947, plaintiffs received notice that the tax due on the lots amounted to $12 and, in order to avoid a further penalty of 3%, should be paid on or before January 10, 1948. Plaintiff Evelyn Farr testified that she was unable to pay the tax before the due date, but that in March, 1948, she sent to Vera Shipman, Plainfield township treasurer, a $10 bill and two $1 bills, and that she was subsequently advised by Mrs. Shipment that the money had been sent to the court house. Mrs. Shipman denied receiving payment in the form of a $10 bill and two $1 bills, but said she did receive a money order for $12 which she returned to plaintiff because plaintiff had refused to pay the 3% penalty.

In May, 1950, the property was sold for taxes to defendant Amos Nordman, who acquired tax deeds on May 22, 1951. There is no claim of irregularity in the sale as such, nor that notices were not sent to plaintiffs. Nordman testified that he telephoned plaintiffs and tried to arrange for a redemption of the taxes, but met with little success.

On February 1, 1952, Nordman served notices as required by the provisions of C.L.1948, § 211.140, Stat.Ann.1950 Rev. § 7.198, advising plaintiffs that he had purchased the property for the unpaid taxes and that they were entitled to reconveyance of same at any time within 6 months upon payment of the amount due, plus 50% and costs, which amounted to a little over $35, and payable, as stated in the notice: 'To the undersigned (Amos Nordman) or to the register of chancery of the county.' The time to redeem expired August 1, 1952.

Plaintiff Harold Farr testified that instead of paying directly to Nordman or to the register in chancery (in this case the county clerk), on May 6, 1952, he went to the county treasurer's office to redeem the property for the 1947 taxes. He stated that he was told he would have to first redeem other taxes and paid the sum of $18.75, even though the notice he had required the payment of $35.04. He was given a redemption certificate showing the taxes for 1948 were redeemed. Plaintiff further testified that he thought he was paying the 1947 tax.

Defendant Nordman brought an ejectment action against plaintiffs, and plaintiffs thereupon filed this suit to set aside the tax sale. The lower court dismissed plaintiffs' bill of complaint, and plaintiffs bring this appeal.

In deciding this case our consideration is first directed toward the fact that plaintiffs definitely had notice of the tax sale for the 1947 tax on February 1, 1952, and that this suit was not commenced until September 11, 1953, more than a year after such notice.

Cl.1948, § 211.70, Stat.Ann.1950 Rev. § 7.115, provides:

'That no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation. In such cases the owner of such lands may move the court at any time within 1 year after he shall have notice of such sale to set the same aside, and the court may so order upon such terms as may be just.'

In Odgers v. Lentz, 319 Mich. 502, 30 N.W.2d 43, 45 the above quoted statute was under consideration, and the Court in that case said:

'The Court held in Hayward v. O'Conner, 145 Mich. 52, 108 N.W. 366, 367, and in Shaaf v. O'Connor, 146 Mich. 504, 109 N.W. 1061, 117 Am. St.Rep. 652: 'When the owner of land has notice--no matter how he obtains that notice--that his land has been sold for taxes, he must, if he desires to have the sale set aside by the circuit court, take proceedings within one year.' See, also, Palmer v. State Land Office Board, 304 Mich. 628, 6 N.W.2d 664. As stated in Pratt v. Corns, 214 Mich. 390, 395, 183 N.W. 71, 73: 'One who has let his legal remedy be outlawed cannot obtain relief in equity. Webster v. Gray, 37 Mich. 37. This doctrine has been frequently announced by this court.'

In view of what has been said, the other errors claimed by plaintiffs are not necessary to this decision as their determination, one way or the other, could not alter the ultimate result. These issues primarily concern questions of fact in regard to the alleged $12 payment, the payment of taxes in May, 1952, by plaintiff Harold Farr, and that the $12 should have been accepted as a partial payment of the 1947 taxes. Suffice it to say that the lower court's conclusions in regard to these matters are adequately substantiated by the record.

We are not unmindful that plaintiffs stand to lose their home, and we have diligently sought, as did the lower court, to find a way to grant them the relief prayed for. However, in view of the decision in Odgers v. Lentz, supra, such relief must be denied.

Decree of the lower court dismissing the bill of complaint is affirmed. No costs, a public question being involved.

DETHMERS, SHARPE, BOYLES and CARR, JJ., concurred with KELLY, J.

EDWARDS, J., took no part in this decision.

SMITH, Justice (dissenting).

We have here no minor tragedy. A family is losing its home. The sovereign power is exercising a doctrine abhorred by equity, that of forfeiture. We speak not in condemnation. The statutes so permit. Possibly there is no other recourse available. That is not for our consideration. But we do have for consideration the validity of its exercise. When an officer of the government, as here, a stranger to the title, undertakes to sell that which he owns not, we scrutinize his acts with a jealous eye. He has no rights except those vested in him by scrupulous adherence to statute made and provided. We are keenly aware of the inviolability of private property, the sacred attributes of the homestead, protected by the genius of the common law and the letter and spirit of our Constitutions. We are equally aware of the demands of our sovereign people that the tide of the tax moneys flow on and still on, unhaltingly and undiminished, that the powers of the government not waste or falter through the machinations of the wicked, or the wiles of the adroit. The statute, then, will be enforced to the letter. But it must be to the letter. Every 'i' must be dotted and every 't' crossed. A sale founded on forfeiture receives no indulgence from a court of equity, tax moneys or no.

It is clear from the most rudimentary considerations that a taxpayer who hsa, in good faith, twice attempted to pay his taxes will not be permitted by the chancellor to lose his home for the nonpayment of these very taxes. True, his attempted payment was refused, both by the township treasurer, and, later, 'down to the Court House' where he went to the wrong official to redeem. But the attempts should not be ignored by us, cannot be, in fact, if we are to do equity. With my brother BLACK'S trenchant observations respecting the regrettable atrophy of equity I am in full accord. My own views on the subject will be found in another tax case, written contemporaneously herewith, Consumers Power Co. v. County of Muskegon, Mich., 78 N.W.2d 223. I agree with my distinguished brother that upon the facts before us the sale was without warrant. Possibly, since we are in substantial agreement as to result, I might well cherish my views in silence. But the opposing view, that of the court below and that of Mr. Justice KELLY, that there is no way to grant these homeowners the relief prayed, betrays a misconception of the nature of taxes and penalties unjustified in our law and which, I fear, may sire additional misshapen progeny unless restrained.

The controversy in this case concerns a charge of $12, described as the '1947 taxes' (Exhibit 8), and an additional charge which, under the statutes, could be collected 'upon all taxes paid on or after said tenth day of January,' C.L.1948, § 211.44, Stat. Ann. § 7.87, here amounting to 36 cents. This additional sum required if payment is not made until after a certain date is accurately curately described by the trial court as a 'penalty.'

What is the nature of the additional charge imposed for delinquent payment of taxes? Does it become a part of 'the' tax imposed, so that the tax becomes (in our case) the indivisible sum of $12.36, which can be liquidated only by the payment of $12.36?

Clearly not. However the delinquency charge is denominated (interest, penalty, charge, or what not), it remains separable in theory and amount, although statutes (see C.L.1948, §§ 211.40, 211.60, Stat.Ann. §§ 7.81, 7.104) commonly permit the tax remedies (i. e., lien, sale) to be employed in its collection. Thus the Oregon court, in Livesay v. DeArmond, 131 Or. 563, 569, 284 P. 166, 168, 68 A.L.R. 422, analyzed the situation in these terms:

'It seems desirable to notice the distinction between a tax and any sums exacted by law for the failure to promptly pay it. Such exactions are often termed interest, yet the reasons which support them are unlike those upon which interest charges are founded. In the absence of some unusual provision in the statute authorizing the levying of a tax, it is generally held that a tax is not a debt. * * * Therefore, an unpaid tax draws no interest unless legislation expressly directs a different result. * * * From Colby v. City of Medford, 85 Or. 485, 167 P. 487, 500 we quote: '* * * In passing, it may be noted that when interest is charged on a...