Fisher v. Muller, Docket No. 16684

• Decision Date: 01 May 1974
• Docket Number: No. 3,Docket No. 16684,3
• Citation: 53 Mich.App. 110,218 N.W.2d 821
• Parties: Robert F. FISHER, Jr., and Eileen Fisher, husband and wife, Plaintiffs-Appellees, v. Frank MULLER et al., Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 821

218 N.W.2d 821

53 Mich.App. 110

Robert F. FISHER, Jr., and Eileen Fisher, husband and wife Plaintiffs-Appellees, v. Frank MULLER et al., Defendants-Appellants.

Docket No. 16684.

Court of Appeals of Michigan, Division No. 3.

May 1, 1974.

Released for Publication June 19, 1974.

Michael S. Muller, Jr., Birmingham, Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jerome Maslowski, Asst. Atty. Gen., for defendants-appellants.

Donald K. Gillard, Alpena, for plaintiffs-appellees.

Before J. H. GILLIS, P.J., and HOLBROOK and DENEWETH,* JJ.

HOLBROOK, Judge.

Plaintiffs brought this suit in January 1971 to have declared void a tax deed on their property issued by the state to the defendants Muller. Trial was held in Alpena County Circuit Court, and on February 21, 1973, the trial judge determined that the deed should be voided and ordered the defendants to quitclaim all their interests in the property to the plaintiffs in compliance with his judgment of ownership. Only defendants Muller now appeal that decision as of right.

In 1932, plaintiff Robert Fisher purchased certain land from Thomas Goodburne. After he purchased the land, he built a cabin on it. Mr. Fisher testified that when he inquired about taxes on the property the following year, the county treasurer told him that the tax on his property would be so small that a separate tax bill for the 100-foot by 100-foot parcel that Fisher bought from Goodburne would not be issued until the valuation of the parcel increased. Mr. Fisher was told he would be notified if and when taxes were assessed. At no time was Mr. Fisher notified of a tax assessment against his property and consequently he has never paid taxes thereon. Mr. Fisher did admit he has never given the county treasurer his name and address and never specifically inquired as to the tax status of the property after 1933.

In 1949 Alberta Goodburne (she apparently was Thomas Goodburne's widow) died leaving the Goodburne real property to be devided among her heirs. Excepted from the description of the land passed on to her heirs via a probate court order was the following described property:

'Excepting the portions thereof described as follows: Lots 5 & 6, Block 2 of the plat of Kabekonah as set forth in deed volume 76, page 286, Alpena County records; also excepting therefrom Lots 5 & 6, Block 2, of the plat of Kabekonah to be hereafter recorded as such, and described by metes and bounds as follows, to-wit: Beginning at a numbered iron pin 485 feet North 53 East of the meander post between Sections 3 and 10; thence 4 East 100 feet; thence at right angles Eastward 100 feet; thence South 4 West 100 feet; thence at right angles Eastward 100 feet to the place of beginning, all being situated in the Southeast Fractional Quarter, the South half thereof, Section 3, in Town 31 North, Range 9 East, as set forth in deed volume 79, page 450, Alpena County records.' ¹

Apparently some time in 1959 the heirs partitioned the property each had owned an undivided interest in as joint tenants. Of the four lots resulting from the partition of the property, Archie Goodburne was given one lot and Elizabeth Wilson and David Goodburne received an adjacent lot north of Archie's. Taxes were paid by the respective owners on both lots from 1960 through 1969. The description for tax purposes of the David Goodburne-Elizabeth Wilson parcel (hereinafter known as the Goodburne-Wilson parcel) was:

'Com 330.1 ft N of S 1/4 post, th S 86 16 E 2232.35 ft, th N 13 56 E 225.38 ft, th N 17 20 W 106.31 ft, th N 86 02 W 2229.63 ft th S 4 16 W 330.1 ft to POB Exc com 485 ft N 53 E from meander post on S sec line, th N 4 E 100 ft, th N 86 W 100 ft, th S 4 W 100 ft., th S 86 E 100 ft to POB. Part of S 1/2 Of SE 1/4.' (Emphasis supplied.)

The property description in the State of Michigan deed to the defendants Muller matches the exception in the Goodburne-Wilson parcel quoted above.

Meanwhile, in 1953 Robert Fisher, now married, took title to the land in question with his wife by the entireties through the agency of a strawman. It is through the resulting deed that plaintiffs claim the property in question. The land was described as follows:

'Lots 5 and 6, Block 2, of the Plat of Kabekonah (to be hereafter recorded as such) and described by metes and bounds as follows, to-wit: Beginning at a numbered Iron Pin,--485--feet North 53 East of the Meander Post between Sections 3 and 10, thence North 4 East 100 feet, thence Westward at right angles 100 feet, thence South 4 West 100 feet, thence at right angles Eastward 100 feet to the Place of Beginning, all being situated in the Southeast fractional Quarter, the South half thereof, Section 3, Township 31 North, Range 9 East, Michigan.'

Plaintiffs recorded their deed, containing their residential mailing address, with the register of deeds in 1953.

In 1962 the plaintiffs' land was for the first time placed on the tax assessment rolls. Apparently the assessed value was $200 and the tax for 1962 was $6.94. The owner's name was listed as unknown on the tax rolls. The 1962 taxes were not paid on the property and the property eventually reverted to the state on June 1, 1966, because of the resulting tax delinquency. The parcel was later sold by public auction to the defendants Muller for $705. A deed was issued to the Mullers on the property by the State of Michigan on August 15, 1969.

In voiding the tax deed the trial court held that plaintiffs' property was included in the property descriptions of Archie Goodburne and David Goodburne and Elizabeth Wilson for tax purposes. The trial court found that taxes had been paid on the two above parcels in 1962, the year the plaintiffs were allegedly delinquent in paying their taxes, so no taxes were in fact owed on plaintiffs' land and therefore the tax sale to defendants Muller was void. The trial court cited Rayner v. Lee, 20 Mich. 384 (1870), and Reed v. Welsch, 358 Mich. 579, 100 N.W.2d 473 (1960), for the proposition that a tax sale deed is void in the event that the property was twice assessed and once paid. Moreover, the trial court held that plaintiffs did not have actual or constructive notice of their tax liability because no notice of either the tax assessment or the later tax sale was ever given them and because they relied on the county treasurer's statements that they would be notified of any tax assessment. Therefore, the trial court felt that a ruling that plaintiffs had been delinquent in paying their property taxes was improper. The Muller's basic objections on appeal go to the factual and legal validity of these findings by the trial court.

I

First, as to the trial court's ruling that plaintiffs' property was twice assessed and once paid, after examination of the entire record we conclude we would have arrived at a different result than the trial court did were we sitting as the trial chancellor. Ogorek v. Loisell, 33 Mich.App. 245, 189 N.W.2d 738 (1971). The above quoted property descriptions clearly show that when Alberta Goodburne's estate was settled in 1949, the description of the land transferred to her heirs specifically excepted the plaintiffs' property. As aforesaid, when the land was subsequently partitioned into four lots among the heirs, Archie Goodburne received one and David Goodburne and Mrs. Elizabeth Wilson Received another. These lots were adjacent, but the Goodburne-Wilson deed description specifically excepted the Fisher property. ² Thus, even though taxes were fully paid on the Goodburne-Wilson parcel in 1962, since the Goodburne-Wilson property excepted the plaintiffs' property, taxes on plaintiffs' property could not have been paid by payment of the Goodburne-Wilson property taxes. The trial court ruled that evidence introduced at trial conclusively proved that the lot belonging to plaintiffs was included in Both the property descriptions given to the lots of Archie Goodburne and that of David Goodburne and Elizabeth Wilson. Contrary to the trial court's finding, the evidence introduced below does not conclusively prove that the premises belonging to the plaintiffs were included in both the descriptions assigned to the property of Archie Goodburne and to the property of David Goodburne and Elizabeth Wilson. The survey performed by James L. Scott and heavily relied on by plaintiffs and the trial court in its opinion illustrated that a small portion of the plaintiffs' land is included in the Archie Goodburne property. Scott testified that based on his survey the encroachment of plaintiffs' land on Archie Goodburne's property was 18.3 feet on one end and 40 feet on the other end, which left portions of plaintiffs' 100 foot by 100 foot lot within both the Goodburne-Wilson parcel and the Archie Goodburne parcel. However, Scott testified that his survey of plaintiffs' land was not based on plaintiffs' deed, but on the line of occupation pointed out to him by Mr. Fisher. Moreover, Scott testified that the survey did not agree with the deed description of plaintiffs' land.

Furthermore, Mr. Fisher himself admitted that the Goodburne-Wilson property description specifically excepted his property.

'Q. (Mr. Snyder, assistant attorney general): Well, you heard Mr. Scott testify that he endeavored to make four fairly equal parcels of land?

'A. (Mr. Fisher): Yes, yes.

'Q. To divide it up. And on one description of Mrs. Wilson, the property that she has does not include yours, is that correct?

'A. It does include it. In fact, the bulk of that property is on Mrs. Wilson; in that area. Isn't that right?

'Mr. Gillard (Plaintiffs' attorney): Just answer Mr. Snyder what you know from Mr. Scott's survey and where the line has been put.

'Q. (By Mr. Snyder, continuing): Are you familiar with legal descriptions, sir?

'A. Well, what do you have reference to?

'Q. I'll call your attention to paragraph 6 of your Complaint which describes Mrs. Wilson and David Goodburne's Property description.

'A. Yes.

'Q. And I...