Hall v. Perry

• Decision Date: 01 November 1888
• Citation: 40 N.W. 324,72 Mich. 202
• Court: Michigan Supreme Court
• Parties: HALL ET AL. v. PERRY.

40 N.W. 324

72 Mich. 202

HALL ET AL. v. PERRY.

Supreme Court of Michigan

November 1, 1888

Error to circuit court, Marquette county; C. B. GRANT, Judge.

Ejectment by Louis A. Hall, Andrew A. Buell, and William C. Busch against Robert D. Perry. Defendant bring error to a judgment for plaintiff. Laws Mich. 1887, act No. 17, provides that where taxes were assessed prior to the passage of the tax law of 1885, and are uncollected, and no sale has been had, all proceedings for the collection of those taxes, and sales therefor, may be had under the provisions of the law of 1885 and declares valid all sales for such taxes previously held under the law of 1885.

LONG J.

This is an action of ejectment, brought by the plaintiffs against the defendant, in the circuit court for Marquette county, and under the charge of the court, verdict and judgment were entered for plaintiffs. Defendant brings the case into this court by writ error. The facts are all agreed upon, and are as follows: The plaintiffs now hold the original title to the land in question in this case by virtue of patents procured by their grantors. The defendant holds the tax deeds covering the lands in question, for the taxes of 1882 and 1883, for taxes duly assessed thereon under the provisions of the tax law of 1882, and which said lands were sold under the provisions of the tax law of 1885,-all of which proceedings assessing the tax and levying the same, and the sale of the property under such assessment and levy, were in accordance with the provisions as to the assessment and levy of the tax of the tax law of 1882, and as to the sale of the same in accordance with the provisions of the tax law of 1885, and in due form, as directed by such statute. The defendant has tax deeds duly executed by the auditor general of the state of Michigan, based upon such assessment, levy and sales for taxes of the land in question, under the statutes above mentioned. Plaintiffs claim title and right to the possession of said land by virtue of the original patents from the United States, and defendant claims the same through the tax deeds from the state, as above mentioned: Neither party is in actual possession. The record then states the following: "It is the intention of the parties to this cause, so far as this case is concerned, to concede the regularity of the proceedings under the tax law of 1882 for the assessing and levying the tax in question; but it is claimed by counsel for plaintiffs that, though the assessment and levy of the tax was in accordance with the law of 1882, and the sale was made under the tax law of 1885, it was void." Upon the introduction of evidence, as above stated, defendant's counsel requested the court to charge the jury to return a verdict for the defendant, which request was refused, and upon such refusal the defendant assigns error.

The court charged the jury as follows: "The plaintiffs in this case are the owners in fee of the land described in the declaration by patent from the general government. They failed to pay their taxes for the years 1882 and 1883. Their lands were returned delinquent, and sold for non-payment of the taxes under the laws of 1885, and were bid in by the defendant, and a deed issued by the state to the defendant for the taxes of those two years. The law of 1885 repealed the law of 1882, and the law of 1885 provided that sales for delinquent taxes for the previous years should be made under the law of 1885. The law of 1885, which provides for the sale for taxes of previous years, has been declared by the supreme court of this state unconstitutional and void. The legislature have, during the present session, passed a law, and given it immediate effect, declaring sales under the law of 1885 for those previous years valid. This in my judgment is clearly beyond the power of the legislature. The sale was absolutely void, and it is not in the power of the legislature to declare a title to real estate valid which was, under the law when made, void. You will therefore...