Hall v. Kellogg

• Decision Date: 22 October 1867
• Citation: 16 Mich. 135
• Court: Michigan Supreme Court
• Parties: Daniel M. Hall v. John G. Kellogg

16 Mich. 135

Daniel M. Hall v. John G. Kellogg

Supreme Court of Michigan

October 22, 1867

Heard October 12, 1867 [Syllabus Material]

Appeal from Allegan circuit in chancery.

The bill in this case was filed bye complainant, who was in possession of the premises, to quiet his title. The defendant relied upon a tax sale.

A decree was made in favor of complainant.

The facts are stated in the opinion.

Decree granting the relief prayed for, affirmed, with costs.

Henry C. Briggs, for complainant:

1. The complainant having made out a presumptive title, it is good until rebutted: 2 Comp. L., § 3460.

2. The tax title, under which defendant claims, is void. The $ 300 appropriated to the agricultural society was unauthorized.

There was no certificate or other evidence presented to the board of supervisors that the agricultural society had raised one hundred dollars, or any other sum. The statute requires such certificate of the president and secretary of the society without this evidence the assessment was void: Comp. L § 1687.

C. I. Walker and W. B. Williams, for defendant:

1. The complainant has failed to establish any title to the lots in question.

While naked possession is sufficient evidence of ownership as against a mere wrong-doer, as in an action against a trespasser, yet ordinarily in the possessory action of ejectment, the plaintiff must prove something more than a naked previous possession--he must prove, also, a claim of title: 1 Saund. Pl. and Ev., 998; 4 Johns. 210; 5 Cow. 200; 7 Wheat. 59.

But in this class of cases, where the defendant has not disturbed the possession of the complainant, where the former is no wrong-doer, the complainant must go farther, and, in the language of the statute, must "establish" his title, and this must be done by clear and satisfactory proof of such title: 2 Comp. L., § 3490; 1 Douglass (Mich.), 546, 565 and 575; 32 Miss. 268; 33 Id. 292.

2. But if the complainant has prima facie established his title to the premises in question, we insist that he has failed in proving the tax title under which we claim (being for a sale for taxes of 1859) to be void.

It is claimed that the taxes levied for 1859, upon the land in question, were excessive and illegal, in that the county tax is excessive, because it includes the sum of $ 300 appropriated to the county agricultural society without the proof, required by the statute, that such society had raised the sum of $ 100 for said year, 1859, or any other year.

The board of supervisors are required to levy a certain tax on a certificate being furnished them by the president and secretary of the society, under oath, that $ 100 or more had been raised: 1 Comp. L., § 1687.

We submit that the complainant has utterly failed to prove that any taxes were levied for the purpose named.

At most it was a mere misappropriation of money, not to be paid out of the tax for 1859, but out of any moneys that might be on hand at any time; and this would not vitiate the tax: 13 Mich. 414.

But we submit that the complainant fails to show that the proper certificate of the agricultural society was not furnished to the board of supervisors.

They prove by the county clerk that he can find no such certificate among the files--but his evidence shows that these files are very loosely kept.

We think, under these circumstances, they should have gone farther, and proved that no such certificate was furnished. This they attempted, and have failed to show. The clerk of the agricultural society, whose term expired on the 29th of September, 1859, testifies that he furnished no such certificate; but his successor, who held the office when the board of supervisors met in the following October, was not sworn.

3. But if we have failed in this, yet if the complainant has not established his title, the result will be the same; the objections to the complainant's tax title of 1858 being the same as those urged against the tax title of 1859.

Campbell, J. Christiancy and Cooley, JJ. concurred. Martin, Ch. J. did not sit.

OPINION

Campbell J.:

Complainant filed his bill in the Allegan circuit court to set aside a claim of defendant to certain lands, which complainant alleged he owned in fee, and of which he was also in possession.

Complainant's title consisted of a purchase from the estate of William Tyler, deceased, who had possessed and occupied the land for several years before his death, and also of a quitclaim from defendant to his grantor of a tax title for 1858. The bill alleged defendant's claim to be under a tax title for 1859, in which year the land was assessed to Tyler's estate, and in due time sold and conveyed by the auditor-general as delinquent. This latter tax title is alleged to be invalid for several reasons, which will, so far as may be necessary, be referred to.

A preliminary objection, however, is urged against any decree, on the ground that complainant has made out no more than a presumptive title, and that the statute requiring in such cases that the title be established cannot be satisfied by anything short of an indefeasible title distinctly made out.

If a bill under the statute...