Henry v. Gregory

• Decision Date: 29 January 1874
• Citation: 29 Mich. 68
• Court: Michigan Supreme Court
• Parties: Mary J. Henry and another v. Edward B. Gregory

29 Mich. 68

Mary J. Henry and another v. Edward B. Gregory

Supreme Court of Michigan

January 29, 1874

Submitted on Briefs January 16, 1874

Appeal in Chancery from Livingston Circuit.

Bill to restrain collection of a tax. Decree dismissing bill on demurrer affirmed.

Decree affirmed, with costs.

Augustus C. Baldwin, for complainants.

D Shields, for defendant.

Cooley J. Graves, Ch. J., and Campbell, J., concurred. Christiancy J., did not sit in this case.

OPINION

Cooley J.

The bill in this case was filed to restrain the collection of a tax alleged to be illegal. The tax was upon lands occupied by complainants, who are husband and wife.

The land is owned by the wife, but was assessed to the husband, and the bill shows that personal property of the husband has been seized and is advertised for sale to satisfy the tax. The bill prays a perpetual injunction to restrain the township treasurer from further proceedings. The defendant demurred, and the demurrer was sustained and the bill dismissed.

The first ground of demurrer is that the bill was not signed by counsel. We think this requirement has become obsolete in our practice. All solicitors in chancery are also counsellors, and every bill is signed by counsel when it is signed by a solicitor. Whatever reason there may have been for a signing by counsel specifically when this was not the case, can have no force now.

The second ground of demurrer is that the bill is multifarious in that it unites distinct and different causes of action in favor of the two complainants separately. So far as this applies to the remedy they seek, to relieve the land from the apparent lien of tax, we think it not well taken. When the wife is owner of the land, and the husband occupies it with her, living upon it, any remedy that may be sought by them to protect their possession, or which in its final results may disturb their possession, should properly be sought by or against them both. For though the wife may have the exclusive title, the husband has a legal right to occupy jointly with her; and it is manifest there cannot be an adjudication covering the whole case so long as only one of the parties jointly entitled to the possession is before the court. This was the view taken when ejectment was brought to test the wife's title; and as the tax now in dispute can only be enforced as against the land by making a sale of it, and depriving both husband and wife of the right of possession, the reasoning of the case would seem to be applicable here. See Hodson v. Van Fossen, 26 Mich. 68.

The further objection that there is an adequate remedy at law appears to be well taken. A levy has been made on the personal property of Isaac Henry to satisfy the tax. The bill...