Moody v. Carnegie

• Decision Date: 06 June 1959
• Docket Number: J,No. 48,48
• Citation: 356 Mich. 434,97 N.W.2d 46
• Parties: Bertha MOODY, Plaintiff and Appellee, v. William CARNEGIE and Julia Carnegie, Defendants and Appellants. anuary Term.
• Court: Michigan Supreme Court

Page 46

97 N.W.2d 46

356 Mich. 434

Bertha MOODY, Plaintiff and Appellee, v. William CARNEGIE and Julia Carnegie, Defendants and Appellants.

No. 48, January Term.

Supreme Court of Michigan.

June 6, 1959.

Daniel Hodgman, Detroit, for appellants.

George F. Mehling, Detroit, for appellee.

Before the Entire Bench.

CARR, Justice.

This equitable suit was instituted in circuit court by plaintiff for the purpose of obtaining a decree quieting title to certain land in Dearborn township, Wayne county. Prior to December 2, 1933, the property in question was owned by Briggs Commercial & Development Company, a Michigan corporation. On the date mentioned Abraham Moody and Bertha Moody, his wife, the latter being the plaintiff in the present case, became the owners by purchase. The deed under which they took title was not recorded until November 17, 1954. It further appears that Abraham Moody died on January 2, 1944, and it is not disputed that at that time plaintiff became the sole owner of the land.

Mr. and Mrs. Moody failed to pay the taxes for 1943, and the property was sold pursuant to statute at a tax sale, the purchaser being the defendant William Carnegie. The amount required to redeem from such sale was $13.51. Defendant caused to be prepared and placed in the hands of the sheriff of the county for service the statutory notice, which was in terms addressed to 'A. Moody, 1116 Livernois Avenue, detroit, Michigan.' Thereafter a return of personal service, stated to have been made on the 28th day of November, 1947, was made by a deputy sheriff of the county. Such return indicated service on 'A. Moody' by delivering same to 'him personally' on the date specified. Defendants rely on said return as indicating proper service on the plaintiff in the instant case, emphasis being placed on the presumption of verity attaching to an official act of the kind in question.

Plaintiff subsequently became aware of the situation with reference to the lot, and entered into an agreement, under date of August 1, 1951, with Frank B. Donohue, whereby the latter assumed the obligation of causing an action to be instituted in court for the purpose of removing the cloud on plaintiff's title to the land. It was further agreed that if the litigation succeeded plaintiff should receive the sum of $250, otherwise a quitclaim deed given by plaintiff to Donohue was to be returned to her. Presumably as a result of this arrangement, an attorney was employed to represent Mrs. Moody and suit was started in circuit court in her behalf. Issue was duly joined, and the matter brought on for hearing. It is the claim of plaintiff that she was not informed by Donohue or by her attorney that her suit was to be brought up in court, and in consequence she was not present. The result was a decree dismissing the case for failure to establish material facts requisite to the granting of the relief sought. Subsequently plaintiff discovered the situation and obtained other counsel who filed for her a ptition for a rehearing. This was done more than four months after the entering of the decree. However, the trial judge granted the petition, apparently concluding that plaintiff had not been treated fairly, that she should have been notified of the hearing and given an opportunity to be present and to testify thereat, and that an injustice had resulted.

On the rehearing plaintiff testified at some length, specifically denying that the notice of tax sale and of the amount required for redemption had been served on her. The officer who made the return of service in the proceeding was not a witness at either hearing. As before stated, defendants relied wholly on the return and the presumption of its correctness. The trial judge concluded that proper service had not been made and entered a decree granting relief to the plaintiff as prayed in her bill of complaint, requiring, however, that she pay to defendants the amounts that they had expended in the payment of taxes on the land during the time that they claimed to own it. It appears from the record that defendant William Carnegie had executed a quitclaim deed to the other defendant. It is conceded also that the principal defendant had no interest in the property other than that acquired by his purchase under the tax sale.

Defendants have appealed from the decree entered, claiming that the trial court had no jurisdiction to grant the rehearing, and in any event that he abused his discretion in so doing. Emphasis is placed on the failure of the trial judge to specifically find that defendant William Carnegie was guilty of fraud. It is apparent, however, that in granting the petition the judge was convinced from the showing made that the rights of plaintiff had not been properly protected. It may be noted in this connection that on the first hearing defendant William Carnegie, called for cross-examination under the statute, stated that he had contacted the Briggs Commercial & Development Company for the purpose of inquiring if that corporation was still the owner of the lot. He was advised that the property had been sold, and that it would be necessary to check records to determine the purchaser or purchasers. Defendant did not further pursue the inquiry, but did check the records in the office of the county treasurer, which apparently indicated that the lot had been assessed to A. Moody. It is a fair inference that the notice of the tax sale and amount necessary for redemption was prepared in reliance on the treasurer's record. That defendant did not make an earnest effort to discover the then owner, or the residence thereof, is evident. Neither did he cause service to be made on the Briggs Commercial & Development Company which was at the time the owner of record. Had he done so, it is quite probable that the corporation would have endeavored to contact its successor in title.

So far as the record before us is concerned, it does not appear that there was any proper reason or excuse for the failure to notify plaintiff with reference to the first hearing. Obviously a proper presentation of her case required that she appear and testify. Whether the omission was intentional or otherwise, she was as a practical proposition deprived of her right to her day in court. It does not appear, nor is it claimed, that the trial judge was advised that notice of the hearing had not been given to Mrs. Moody. Under the circumstances we think that the court did not exceed its jurisdiction in granting the rehearing, nor was there any abuse of discretion in so doing. Obviously it was the only method that might have been followed to obviate an injustice to the plaintiff.

In Berg v. Berg, 336 Mich. 284, 57 N.W.2d 889, a guardian ad litem was appointed for the defendant who was confined in a State institution for the criminally insane. The record in the case indicated that no effort was made on behalf of defendant to contest the plaintiff's right to the relief sought. The decree entered granted him all of the property that the parties had owned, it being required that he pay to the State the current rate for the support of defendant in the institution where she was confined. In considering the merits of a petition for a rehearing this Court concluded that the rights of the defendant had not been properly protected and that the withholding of the facts asserted in the petition, assuming the truth of the allegations, constituted a fraud on the court resulting in an inequitable decree which might not have been entered had the court been advised as to the facts. An analogous situation exists in the case at bar. Had the trial judge been advised that plaintiff had not been notified of the hearing and given an opportunity to be present and testify in her own behalf, it is quite probable that the decree dismissing the case would not have been made.

It is also contended by appellants that the final decree is not in accord with the proofs. In substance it is argued that the presumption of validity of service of the notice of the tax sale and amount necessary for redemption was not overcome by proper proof. As before stated, plaintiff testified that the notice was not served on her. An examination of the return filed by the deputy sheriff does not disclose that it was in fact served on plaintiff. Said notice was addressed to A. Moody, to whom the records in the county treasurer's office indicated the property had been assessed. The return stated that service had been made on the party to whom the notice was addressed, with the further statement that it was served on 'him personally.' Had this service been made on plaintiff it must be assumed that the return would have so indicated. Alpena National Bank v. Hoey, 281 Mich. 307, 274 N.W. 803, on which appellants rely, involved a different factual situation than does the case at bar. There the proof of service of a chancery summons in a foreclosure suit indicated that servide had actually been made on the defendant. The officer making such return was a witness in the case and testified as to his practice in serving papers of the character in question. In the case at bar the conclusion of the circuit judge as to the fact in issue is supported not only by the testimony of plaintiff but by the return itself, which clearly indicates that service of notice of the tax sale was not made on Mrs. Moody.

In writing for reversal of the decree Mr. Justice BLACK asserts that the trial court was in error in granting a rehearing, that no proof was offered in support of plaintiff's claim that the decree of December 2, 1954, was fraudulently obtained, and that failure to notify plaintiff of the hearing, if there was such failure, did not constitute a proper ground for granting he petition. As appears from the original record returned to this Court from the circuit court of Wayne County, plaintiff filed a sworn petition stating as matters of fact that at the time of the original hearing she was in good...