Hughes v. Jordan

• Decision Date: 18 July 1898
• Citation: 76 N.W. 134,118 Mich. 27
• Court: Michigan Supreme Court
• Parties: HUGHES v. JORDAN.

76 N.W. 134

118 Mich. 27

HUGHES v. JORDAN.

Supreme Court of Michigan

July 18, 1898

Appeal from circuit court, Muskegon county, in chancery; Fred J Russell, Judge.

Petition by Edward Hughes against Patrick Jordan. There was an order issuing a writ of assistance, and respondent appeals. Reversed.

Stephen H. Clink, for petitioner.

M. C Kelley and Brown & Adams, for respondent.

HOOKER J.

Hughes the petitioner, is the purchaser of the premises in controversy from Clink, who bought them from the state, said lands having been bid in for the state for the tax of 1893. The auditor's deed was issued to Clink on July 27, 1897, shortly before he deeded to Hughes. On September 20, 1897, application was made by Hughes to the court, which rendered the decree for a writ of assistance, to enable him to obtain possession. The defendant, Jordan, purchased the lands from Kelley, by contract dated April 2, 1897. Kelley had possession from April, 1890, under a contract. The defendant alleged in his answer, and offered to prove, that, after the issue of the deed from the auditor general to Clink, Kelley tendered an amount equal to the taxes of 1893 and 1896 to the auditor general, and demanded a deed; that no demand for payment of the tax of 1893 was made by the township treasurer of Kelley, as provided by section 46 of the tax law of 1893, although said treasurer knew that Kelley claimed to own the land, and had paid the tax for 1892 to him; that no attempt was made by the township treasurer to collect the tax from the personal property of said Kelley, which might have been done; and that the deed was void for the further reason that it issued without payment of the tax of 1896, which was at that time a lien upon the premises, and which is still unpaid. The answer concluded with a prayer "that the decree be reopened and vacated, and a rehearing granted, and defendant allowed to show what portion of the tax for which the land was sold is illegal and void, and that the sale and deed be declared void, and defendant be allowed to pay such taxes as are legal. The court did not permit such proof to be made, denied a rehearing, and ordered the writ of assistance to issue as prayed.

Most of the questions raised relate to irregularities anterior to the decree under which the state purchased the land, and these are covered by the recent cases of Cole v. Shelp, 98 Mich. 58, 56 N.W. 1052; Muirhead v. Sands (Mich.) 69 N.W. 826; Turton v. Dumphey (Mich.) 71 N.W. 527; Turner v. Hutchinson (Mich.) 71 N.W. 514; and Auditor General v. Sparrow (decided April 5, 1898) 74 N.W. 881. The following questions are, however, open upon this record, viz.: (1) Whether the circuit court had jurisdiction in the tax proceedings under which the state purchased; (2) whether the proceedings subsequent to decree were void; (3) whether the purchase by Clink of the state's title was accompanied by payment of the tax of 1896, and, if not, whether that fact rendered the deed void; (4) whether a writ of assistance may be issued in case the petitioner's title is sustained; (5) whether it should be denied, and a rehearing in the original tax case granted.

We may...