Fells v. Barbour
| Decision Date | 29 September 1885 |
| Citation | 58 Mich. 49,24 N.W. 672 |
| Court | Michigan Supreme Court |
| Parties | FELLS v. BARBOUR and others. |
Error to Wayne.
Ervin Palmer and F.A. Baker, for appellant.
Barbour & Rexford, for defendants.
This action is ejectment, to recover the possession of lot 5 Scoville & Whipple's subdivision of the "Lorenger Farm," in the Twelfth ward in the city of Detroit. The suit was commenced in the life-time of the deceased, and continued in the name of the present plaintiff since his death, under the provision of the statute for that purpose. How.St. � 7817. Two trials have been had at the circuit, both resulting for the defendant. On the last trial the verdict was directed by the court, and, judgment having been entered thereon, the plaintiff brings error. It was stipulated that Thomas Hurst was owner of the property in question in 1873 on the fourth of November, and that defendants were in possession when this suit was commenced, April 9, 1883, and claimed title thereto adversely to the plaintiff. On the trial the plaintiff gave in evidence (1) a mortgage dated November 4, 1873, given by said Thomas Hurst to Benjamin Harrison, to secure the payment of the sum of $1,000; (2) a sheriff's deed, dated December 23, 1881, duly executed given on foreclosure of said mortgage, for the consideration of $1,685, to the said Benjamin Harrison, which deed according to the certificate of the sheriff, was to become operative December 23, 1882. The defendants, to maintain their defense, offered in evidence three tax deeds, given on sales of said lot for the state and county taxes assessed thereon for the years 1875, 1876, and 1877, to the defendant Barbour. These deeds were all signed, executed, and acknowledged by Hubert R. Pratt, deputy auditor general, and were all admitted in evidence, against the objection of counsel for plaintiff that "the deeds were not those of the auditor general," and also that they were not recorded.
We are unable to discover that the recording of these deeds could make for either party, as the case is presented. Certainly it could not affect their validity, and no question of priority is made. This court has already decided that execution of the deeds and the acknowledgment thereof by the deputy auditor general is sufficient. Westbrook v. Miller, 22 N.W. 256. We do not think the court erred in admitting these deeds in evidence.
The counsel for defendants next offered in evidence a lease of the lot in question to the defendant Barbour for the term of 100 years, given by the comptroller of the city of Detroit, on a sale made thereof for the general city taxes assessed against the lot for the year 1875; also a similar lease given to said Barbour for the city taxes of 1876, and two others, running to the same party, for the taxes assessed against the property in each of the years 1877 and 1878; the term in the last three leases being in each for 99 years. These four leases were all received in evidence by the court, subject to the objection of incompetency, and plaintiff's counsel excepted, and here the defendants rested their case.
It is claimed by the defendants that these leases--all except that made for the tax of 1875 (which they abandoned)--are all executed in accordance with the statute, and are prima facie evidence in favor of defendants' right to possession. Sess.Laws 1857, �� 246-253; Charter of Detroit. The principal reliance of defendants, however, appears to be upon the tax titles from the state.
For the purpose of showing these tax titles invalid, the plaintiff, in rebuttal, introduced from the county treasurer's office the tax-rolls for 1875, 1876, and 1877. The tax-rolls contain no certificates of the board of review, nor copies of certificates, nor any signature thereto. They do contain warrants, signed by the city assessor, attached thereto. At the time the assessments were made under which these tax deeds were given, the assessment roll consisted of a properly arranged written statement, containing the names of the resident property owners of the township or ward, a description and amount of their property, and that of non-resident owners, and the assessor's valuation of each parcel of land, entered, signed, and properly certified by him, and approved by the proper board of review, with the certificate of approval indorsed thereon or attached thereto. Comp.Laws 1871, p. 266, � 21; also see �� 24, 25, 29, 33. The assessment roll thus prepared, and completed by extending the amount of tax to be collected thereon, was required to be kept in the office of the supervisor in townships, and in the office of the person discharging the duties of assessor in cities. Section 29. The tax-roll, or collection roll, as it is not unfrequently called, consisted of a copy of the assessment roll, without the certificate or signatures of the assessor or board of review thereon or thereto annexed, together with the supervisor's warrant to the collector attached. It was held by the supreme court of this state that the collection roll was not invalid by reason of not containing these certificates, or copies thereof. See Tweed v. Metcalf, 4 Mich. 599; Bird v. Perkins, 33 Mich. 31. The same point seems to have been similarly decided in Van Rensselaer v. Witbeck, 7 Barb. 133; and to the same effect upon this point in the case of Sibley v. Smith, 2 Mich. 502. How this question would be decided under the present legislation it is unnecessary now to decide.
It seems quite clear that under the testimony offered by the plaintiff upon this point the tax titles would have been invalid, but the defendants' counsel, against the objection of plaintiff, were permitted by the court to introduce in evidence the assessment roll proper, showing the necessary certificates, thereby removing the apparent difficulty. This ruling of the circuit judge was excepted to by plaintiff's counsel. We think, however, the testimony was properly admitted. The proof was competent and material when offered. The order might not be in compliance with...
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