McVannel v. Pure Oil Co.

• Decision Date: 04 April 1933
• Docket Number: No. 75.,75.
• Citation: 247 N.W. 735,262 Mich. 518
• Parties: McVANNEL et al. v. PURE OIL CO.
• Court: Michigan Supreme Court

262 Mich. 518

247 N.W. 735

McVANNEL et al.

v.PURE OIL CO.

No. 75.

Supreme Court of Michigan.

April 4, 1933.

Appeal from Circuit Court, Midland County, in Chancery; Glenn E. Warner, Judge.

Suit by George H. McVannel and others against the Pure Oil Company and others. From a conditional decree for plaintiffs, defendants appeal and plaintiffs take a cross-appeal.

Affirmed.

Argued before the Entire Bench.Virgil W. McClintic, of Mt. Pleasant, for appellant Pure Oil co.

Chester E. Morris, of Midland, for appellants Harter Bros.

Wilson & Hoffman, of Flint, and O'Keefe & O'Keefe, of Saginaw, for appellees.

POTTER, Justice.

Plaintiffs filed their bill of complaint against defendants to set aside a deed from F. Roy Holmes and Cora A. Holmes, his wife, to Basil Harter and Ralph Harter, and an oil lease from Basil E. Harter and Hazel Harter, his wife, and Ralph D. Harter to the Pure Oil Company; for a release of the interest of the Pure Oil Company of its claimed interest in the lands in question under its lease; to cancel and set aside its lease, and for other relief. Defendants answered, denying all the material allegations of plaintiffs' bill, alleging title, and rights in the Pure Oil Company under its lease, claimed to be valid; denying plaintiffs were entitled to the whole or any part of the relief prayed. From a conditional decree for plaintiffs, defendants appeal, and plaintiffs take a cross-appeal.

The controversy concerns the northeast quarter of the southwest quarter of section 6, township 14 north, range 8 west in Midland county. Plaintiffs claim they are the owners of the regular or government chain of title to the real estate in question; defendants did not prove title by adverse possession, nor by virtue of state tax deeds passing under the sale of the lands for taxes and proceedings thereunder; and plaintiffs are not estopped to claim under the original government chain of title. The trial court imposed, as a condition to a decree for plaintiffs, they should repay the amount of the taxes on the premises paid by the adverse claimants, and decree was rendered for plaintiffs subject to this condition. Defendants claim plaintiffs' right of action was barred by the statute of limitations, that they have title to the premises by adverse possession, and plaintiffs are estopped from asserting title against defendants.

Mahlon S. Miller being the owner of this land, died August 11, 1902, leaving by his first wife five children, Celestine Miller Bailey, Elizabeth Miller Smith, Mary Miller Garner, Lemuel Miller, and Sylvester Miller; and by his second wife, two children, Earl Miller and Myrtle Miller Kath. Some of these children died prior to the commencement of this suit. There is no dispute as to the heirship of their descendants. Plaintiffs claim title because they hold in privity with the title of Mahlon S. Miller, deceased. Defendants base their title on a tax deed from the state to F. Roy Holmes, dated October 19, 1907, recorded December 2, 1907, made in pursuance of the general tax law of 1897, as amended. Holmes deeded the property to Basil Harter and Ralph Harter May 9, 1914, which deed was recorded June 5, 1914. The rights of defendants being based upon this tax deed, it was incumbent upon them to show compliance with the tax law.

Defendants proved service of the tax notice prescribed by statute upon Mary Garner, Lemuel Miller, Elizabeth Miller Smith, Sylvester Miller, Earl Miller, and Joseph Evaland as guardian of Myrtle Miller, and service by registered letter upon Robert S. Mitchell, mortgagee. No proof that service was made upon Celesta M. Bailey or upon her personal representative or heirs, appears.

1. Act No. 229, Public Acts 1897, prohibited the issuance of writs of assistance or other process to purchasers under tax deed of land to place them in possession thereof until six months after the return of service of the tax deed notice provided therein. If the owner of the original title after such service redeemed therefrom, he became entitled to a reconveyance in pursuance of the statute. This act was amended by Act No. 204, Public Acts 1899, to provide, in case the owner of the interest in the land was dead, for service upon the personal representative of the deceased person and upon his heirs. At the death of the ancestor, the title to real estate descends to heirs in the absence of other disposition of the real estate and service must have been made upon the heirs of Celesta Miller Bailey. The effect of proceedings under the tax law, if valid, is to divest the true owner of the title to his property, and to vest the same in the holder of the tax deed, and such proceedings must be closely scrutinized and strictly construed. The rule is well settled in this state that, ‘the tax-title holder cannot proceed by ‘piecemeal’ to cut off the right of redemption of each part owner. Until he has complied with the statute as to all, the right of redemption remains to all. It seems to me that this is the reasonable construction that is given to these statutes.' White v. Shaw, 150 Mich. 270, 114 N. W. 210, 211.

Until this is done, the statute provides: ‘The person or persons, claiming title under tax deed or certificate of purchase shall be forever barred from asserting such title or claiming a lien on the land by reason of such tax purchase.’ Section 3466, Comp. Laws 1929.

Defendants not only cannot claim title under the tax deed involved, but are barred from asserting such title or claiming a lien based thereon.

2. Defendants claim title by adverse possession. If they establish title by adverse possession, such title must be established independent of and contrary to the provisions of section 3466, Comp. Laws 1929. Under the law of this state, color of title is not necessarily the basis of adverse possession. One may claim and acquire title by adverse possession, independent of color of title. Lawson v. Bishop, 212 Mich. 691, 180 N.W. 596.

‘The doctrine which sanctions the divestiture of the true owner by hostile occupancy is to be taken strictly, and the case is not to be made out by inference, but by clear and cogent proof.’ Yelverton v. Steele, 40 Mich. 538;Simons v. McCormick, 202 Mich. 485, 168 N. W. 467.

‘Adverse possession, to give title, must be an actual, continued, visible, notorious, distinct, and hostile possession, and a finding of adverse possession must set forth in explicit terms a state of facts that will satisfy the legal definition.’ Paldi v. Paldi, 95 Mich. 410, 54 N. W. 903, 904;Simons v. McCormick, 202 Mich. 485, 168 N. W. 467.

‘It is also well settled that the possession of an occupant is co-extensive with his claim and color of title. If in possession of a part under color of title to the whole tract, his constructive possession extends to the whole; if under color of title to an undivided interest, his constructive possession covers the whole to the extent of such interest; if without color of title, the possession is not extended by construction, beyond the boundaries of the occupied portion.’ Compau v. Campau, 44 Mich. 31, 5 N. W. 1062, 1063.

‘One claiming title by adverse possession but not holding under color of title acquires no title to any land except what is in his actual possession. There can be no constructive possession without color of title. It cannot be acquired by mere assertion of claim of title.’ 2 C. J. 230, 231.

‘The reason of which the rule is based is that when an entry is not under color of title there is no invasion or disseizin which notifies the true owner of a claim asserted by another person, or which gives him a right of action except as to the land actually occupied.’ 2 C. J. 232.

‘Mere occupancy of land is not sufficient to give title by adverse possession.’ Bunce v. Bidwell, 43 Mich. 542, 5 N. W. 1023.

‘A mere claim of title, no matter how long asserted, will not ripen into title.’ Doctor v. Turner, 251 Mich. 175, 231 N. W. 115, 119.

‘It is well settled that the constructive possession of land is in the holder of the record title.’ Doctor v. Turner, 251 Mich. 175, 231 N. W. 115, 119; section 13967, Comp. Laws 1929.

‘It may well be conceded that paying taxes, or assertion of title, or the common understanding in the neighborhood, or making surveys, or an occasional renting for trapping and shooting, is not sufficient to establish title by adverse possession.’ Whitaker v. Shooting Club, 102 Mich. 454, 60 N. W. 983, 984.

The Harters received deed to the property in 1914. The next year they entered upon the premises, cut some brush, and built a lean-to shack. They left the premises in the fall of 1915 and did not come back again until the summer of 1922. At that time the house was gone, and while they stayed there a short time they lived in a movable house built on a motor...