Groesbeck v. Seeley

• Decision Date: 13 May 1865
• Court: Michigan Supreme Court
• Parties: William E. Groesbeck and another v. Henry E. Seeley

13 Mich. 329

William E. Groesbeck and another v. Henry E. Seeley

Supreme Court of Michigan

May 13, 1865

May 4 1865; May 5, 1865, Heard [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

The plaintiff (defendant in error) brought ejectment to recover certain property, and introduced in evidence, a deed from the auditor-general to Collins Bradley, duly executed and acknowledged, which, omitting the formal parts, was as follows:

"Witnesseth, That, whereas, in pursuance of the provisions of law, the said party of the second part, on the seventh day of January, A. D. 1864, became the purchaser of the rights of the state, in and to the following described land, situate in the county of Wayne in said state, which were bid off to the state for the taxes assessed thereon, in the years 1857, 1858, and 1860, and which has remained undisposed of for five years, from the date when it was so bid off, for the taxes of 1857, to wit: out lot me one hundred and eighty-eight (188), of Rivard farm, city of Detroit, according to the plat thereof, containing eight acres, more or less.

"And, whereas, The said party of the second part obtained a certificate from the auditor-general for the purchase of the above described lands, according to law, and paid to the state treasurer upon such certificate the sum of ninety-two dollars and eighty-nine cents, being the amount of purchase money thereof, as provided by law, which certificate has been presented, and surrendered to the said auditor-general.

"Now, therefore, this indenture witnesseth, That the said Emil Anneke, auditor-general of the said state of Michigan, in the name of the people of said state, and by virtue of the authority vested in him by the laws thereof, in consideration of the premises, and the payment of the purchase money above mentioned, the receipt whereof is hereby confessed and acknowledged, does, by these presents, remise, release, and quitclaim unto the said Collins Bradley, party of the second part, and to his heirs and assigns forever, all the rights acquired by the state in virtue of the original sale or sales to the state in the premises above described, subject to all taxes duly assessed thereon."

The defendants objected to the introduction of said deed in evidence on the ground that preliminary proofs of sales to the state for taxes should first be introduced; that there was no authority of law to assess, levy and collect state and county taxes in the city of Detroit for the years 1857, 1858 and 1860; that there was no authority of law to make, grant or issue said deed; that the said deed, and especially the recitals therein, were not competent; that the legal effect of the deed was not such as to sustain, or tend to sustain, title in the plaintiff, and that said deed was for other reasons inadmissible. The court overruled the objection and admitted the deed in evidence.

The plaintiff then introduced in evidence a quit-claim deed of the same property, from Collins Bradley and wife, to him, acknowledged before E. H. Rogers, notary public.

The defendants made the like objection to this deed as to the first above named, and the court overruled the objection.

The plaintiff then, further to sustain the issue on his part, offered in evidence a book kept by the county treasurer of Wayne county, containing statements of the lands sold by him on the sixth day of October, 1858, at a continuation of the annual sales commenced on the first Monday of said October, for taxes of 1857, and by whom the same were purchased, and showing that the land in question was struck off to the state at that time, for the taxes of 1857. The defendants objected to this book and the entries therein, as not competent evidence; but the court overruled the objection and admitted the evidence.

The plaintiff, having then proved possession by the defendant Allshodt, and a claim of title by the defendant Groesbeck, rested his case.

The defendants then offered evidence to show that in the proceedings for the assessment and collection of taxes on the land in question, for each of the years mentioned in the first deed above named, that is to say, for the years, 1857, 1858 and 1860, and each of them, there was in several particulars such a non-compliance with the law regulating the assessment and collection of taxes, that such proceedings were, in law, void and of no effect, and that the deeds introduced in evidence by the plaintiff were, consequently, absolutely null and void, and conveyed no title to the plaintiff. The plaintiff objected to such testimony, and the court sustained the objection and refused to allow any such evidence to be introduced.

The defendants then called E. H. Rogers, one of the subscribing witnesses, and the acknowledging officer to the second deed above named, and offered to show by said witness that he, said Rogers, was the real purchaser of the land in question; that the deed from the state to Bradley, and the one from Bradley to the plaintiff, were procured by said Rogers for his own use and benefit; that the right to the possession and the profits of the land in question were intended by said conveyances to be vested in said Rogers; that the plaintiff's name was used as a mere nominal party by said Rogers for that purpose, and that the plaintiff had no real interest in the property. The plaintiff objected to such testimony, and the court sustained the objection.

The defendant excepted to these several rulings of the court, and, the jury having rendered a verdict for the plaintiff, defendant brought error.

Judgment reversed with costs, and the cause remanded for a new trial.

L. Bishop, for plaintiff in error:

1. The deed from the auditor-general to Bradley was not competent evidence, without preliminary proof of a sale of land to the state. Such a deed is claimed to have the same effect as a deed upon a certificate of sale of state tax lands given by the county treasurer: Laws of 1858, p. 191, § 130, and p. 190, § 124.

What, then, is the effect of a deed in the case last named? It will be noticed that the statute has not prescribed what shall be the form, contents, words or recitals of a deed to be given in either case.

It is to be simply a deed of the land conveying all the right and interest of the state: Laws of 1858, p. 190, § 124. This is all. No recitals of facts in the deed are authorized by the statute.

If the auditor can, by a simple recital in a deed, manufacture evidence on one point, for one purpose, he can on any point, for any purpose, as may suit the convenience of dealers in tax titles.

But he has no such power. His recitals are in no respect whatever, made evidence, or even required or authorized by statute: Laws of 1858, p. 190, § 124, and p. 191, § 130; 1 C. L., § 911.

They are in no respect evidence at common law: 1 Greenleaf's Ev., § 34, 211.

In Sibley v. Smith the auditor's deed was objected to, because it did not, as claimed, contain recitals enough; but it was held that enough was recited, and the court declare upon authority that "recitals are not evidence in any case, unless made so by express provision of statute:" Sibley v. Smith, 2 Mich. 496; Varick v. Tallman, 2 Barb. 113.

The familiar rule will be remembered, that the authority to assess and sell lands for taxes is a simple naked power given by the statute, and no authority, which is not expressly given, can be exercised: 1 Phil. Ev., 472; Blackwell, 45-58; 2 Barb. 113; Harrington's Ch., 3.

"Such statutes," say the court, "must be construed strictly, and their provisions can be enforced no further than they are clearly expressed:" 2 Mich. 486, 490.

The fact, therefore, that the county treasurer gives a certificate of sale in the one case, or that the land is bid off to the state in the other, is not proved by any recital in the deed. Such fact must, in either case, be first established by competent evidence aliunde, and when so established, then the deed is admissible in evidence, and it then becomes prima facie evidence of the legality of all prior proceedings and of title in the grantee: 2 Mich. 497; 1 Phil. Ev., 472.

2. The auditor's deed should not have been admitted in evidence, because there was no presumption of law created by statute in favor of the regularity of the proceedings anterior thereto, or that there were any such proceedings.

The general law as to deeds given on sales made to private persons by the county treasurer does not apply to this class of deeds for state tax lands: 1 C. L., § 871, amended 1858, p. 185.

Any such presumption must therefore arise on the fore part of section 124, of the act of 1858. See §§ 910, 911, Laws of 1858, p. 910, § 124, and p. 191, § 180.

In the first place, I argue, with counsel in Quinlon v. Rogers, that this section is unconstitutional, as depriving people of their property without due process of law: Quinlon v. Rogers, 12 Mich. 169, and cases cited.

Also, because it is an assumption of judicial power by the legislature: Same, and cases cited.

In the next place this whole section is so connected with section 101 of the same act, that it must fall wholly with that section under the decisions of this court: Laws of 1858, page 186, § 101; Waldby v. Callendar, 8 Mich. 430.

The clause in section 124 declaring the conclusive effect of these deeds, has been pronounced unconstitutional, and in the decision, the court say of this act of 1858, that "the whole statute was designed to go together:" Quinlon v. Rogers, 12 Mich. 168, 170.

If then, the whole statute must go together, certainly this whole section must go together, and must fall with any part of it. ...