MacKinnon v. Auditor General

• Decision Date: 19 May 1902
• Citation: 90 N.W. 329,130 Mich. 552
• Court: Michigan Supreme Court
• Parties: MacKINNON v. AUDITOR GENERAL.

90 N.W. 329

130 Mich. 552

MacKINNON v. AUDITOR GENERAL.

Supreme Court of Michigan

May 19, 1902

Application by Donald C. MacKinnon for a writ of mandamus against the auditor general to compel the cancellation of tax sales and the refund of taxes. Writ denied.

Fred H. Abbott, for relator.

Horace M. Oren, Atty. Gen. (Charles W. McGill, of counsel), for respondent.

MOORE J.

The following statement of facts, taken from the brief of the attorney general, does not materially differ from that contained in the brief of counsel for relator:

At the county treasurer's sale in October, 1886, relator purchased lot 1 of block 5 and lot 7 of block 4 of the recorded plat of the village of Iron River for the taxes of 1883 and 1884. He purchased the same lands at the auditor general's office in August, 1888, for the taxes of 1885 and at the county treasurer's sale in October, 1888, for the taxes of 1886, and in May, 1890, for the taxes of 1887. It appears that in 1878 relator located 80 acres of land with certain scrip issued by virtue of a decree rendered on the 16th day of December, 1873, by the supreme court of the United States, in section 26, in township 43 N., range 35 W and received a certificate in full satisfaction thereof under date of August 1, 1878. In the same year Alexander MacKinnon located 160 acres of land under certain scrip issued by virtue of a decree of the supreme court of the United States rendered on the 28th day of January, 1878, in section 25 township 43 N., range 35 W., and received a certificate in full satisfaction thereof. In May, 1880, the relator executed to Alexander MacKinnon a quitclaim deed purporting to convey to him an undivided one-half of the 80 acres located by relator, and Alexander MacKinnon at the same time executed and delivered to relator a quitclaim deed which purported to convey to the relator an undivided one-half of the lands which had been so located and entered by Alexander MacKinnon which deeds were duly recorded in the office of the register of deeds of the county in which the lands were located. In 1881 Alexander MacKinnon and the relator executed and recorded in manner and form as required by law a town plat embracing the lands so located and entered by them, which plat was named and is known as the 'Plat of the Village of Iron River,' and of which said lot 1 of block 5 and lot 7 of block 4 of the recorded plat of the village of Iron River is a part. Relator alleges that after the relator and Alexander MacKinnon located the lands in question their right to locate said lands with said scrip was duly contested before the commissioner of the general land office at Washington, and an appeal from the decision of said commissioner was taken to the secretary of the interior; but in this case the fact of such contest is immaterial, because the final decision rendered by the secretary of the interior fully sustained the right of relator and Alexander MacKinnon to locate the lands with the scrip. It also appears that, where lands were located with the aforesaid mentioned scrip, it was thought the laws of the United States made no provision for issuing a patent to the persons locating such lands thereunder, and patents for the lands were not issued until some time in the year 1895, congress having passed an act of May 30, 1894, authorizing the issuing of such patents. By virtue of the above-mentioned quitclaim deeds the relator and Alexander MacKinnon became the joint owners of the lands located by them as...