Gamble v. Horr

• Decision Date: 15 April 1879
• Citation: 40 Mich. 561
• Court: Michigan Supreme Court
• Parties: Emma Gamble v. Rollin A. Horr

40 Mich. 561

Emma Gamble v. Rollin A. Horr

Supreme Court of Michigan

April 15, 1879

Submitted April 10, 1879

Error to Saginaw. Submitted April 10. Decided April 15.

Judgment affirmed with costs, and the record remanded.

O'Brien J. Atkinson and Elliott G. Stevenson for plaintiff in error.

Wisner & Draper for defendant in error. The possessor of land is supposed to have acquired the title once held by the sovereign, Hall v. Kellogg, 16 Mich. 135; McFarlane v. Ray, 14 Mich. 465; Day v Alverson, 9 Wend. 223; Hicks v. Davis, 4 Cal 67; Wood v. West, 1 Blackf. 133; Winans v Christy, 4 Cal. 70; Keane v. Cannovan, 21 Cal. 305; Dale v. Faivre, 43 Mo. 556; Ricard v. Williams, 7 Wheat. 59. For rulings upon statutes similar to Comp. L., § 1130, see Lusk v. Harber, 3 Gill 161; Curry v. Hinman, 11 Ill. 420; Cooley on Taxation, ch. 10.

Cooley, J. The other Justices concurred.

OPINION

Cooley, J.

The action in the court below was brought by Horr to recover possession of three lots in the city of East Saginaw lying together and occupied as one parcel. To make out his title Horr proved the following facts:

1. That some time prior to February 6, 1873, one William Gallagher was in possession of and actually occupying said premises, and that he enclosed them and built a house thereon which he occupied with his family.

2. That while so occupying, and on the sixth day of February aforesaid, William Gallagher sold the premises to Roswell G. Horr, and executed to him a deed purporting to convey the same.

3. That on February 23, 1873, Roswell G. Horr sold the premises to John Gamble, and executed to him a deed of conveyance under which John Gamble went into possession.

4. That as a part of the transaction of sale John Gamble was to and did give a mortgage to Roswell G. Horr for ten thousand dollars, the purchase price of said premises, and covering the same, which mortgage was afterwards assigned to Rollin A. Horr, who foreclosed the same by advertisement under the power of sale, and received a deed on the foreclosure which became absolute May 7, 1878.

5. That John Gamble occupied the premises until his death, which occurred before this suit was brought, and that Emma Gamble is his widow and was in possession when this suit was instituted.

This showing made out a prima facie case for the plaintiff. William Gallagher having had peaceable possession and occupancy of the premises, and having assumed to convey them as owner, must be deemed prima facie to have had a right to do so; and his prima facie right is shown to have passed to Rollin A. Horr. This was a sufficient showing until in some manner it was met on the part of the defense. Hall v. Kellogg, 16 Mich. 135, 139; McFarlane v. Ray, 14 Mich. 465.

To meet this case defendant showed that the premises were sold for delinquent taxes of 1873 and 1874 to one Hoffman, who sold to one Garvey, and that Garvey brought ejectment against defendant and her children, the heirs at law of John Gamble, and took judgment against them by default; that he obtained possession under this judgment, but afterwards, and before Horr brought suit, pet Mrs. Gamble in possession again, so that she occupied claiming under the tax-title subsequent to that time. Plaintiff then offered to show, and was allowed under objection by defendant to show, that the tax-title was wholly invalid and void. As it is not questioned that this showing was ample if admissible, we need not examine or consider it.

The objection by defendant to this showing is made under Comp. L. § 1130, which provides that "no person shall be permitted to question the title acquired by such Auditor General's deed, without proving that he, or the person through whom he claims title, had title to the land at the time of the sale thereof for non-payment of taxes, or subsequently, which title was acquired from the United States or from this State." It is said with truth that plaintiff has not traced title to either the United States or to this State, and it is therefore insisted that by the express terms of the section he is precluded from questioning the tax-title.

If this section is strictly construed and applied, it is plain that the objection of defendant is well taken. If the contestant of a tax-title must in every case trace his title back to the government, ...