Nat'l Bank of Detroit v. State Land Office Bd., Motion No. 100.

• Decision Date: 05 January 1942
• Docket Number: Motion No. 100.
• Citation: 300 Mich. 240,1 N.W.2d 525
• Parties: NATIONAL BANK OF DETROIT v. STATE LAND OFFICE BOARD et al.
• Court: Michigan Supreme Court

300 Mich. 240

1 N.W.2d 525

NATIONAL BANK OF DETROIT

v.STATE LAND OFFICE BOARD et al.

Motion No. 100.

Supreme Court of Michigan.

Jan. 5, 1942.

Original mandamus proceeding by the National Bank of Detroit, a national banking association, against the State Land Office Board, a body corporate, and another, to compel the board to issue a deed.

Decision in accordance with opinion.

Argued before the Entire Bench.

Dykema, Jones & Wheat, of Detroit (James D. Tracy, of Detroit, of counsel), for petitioner.

Griffin, Emery & Seely, of Detroit (Louis C. Baker and Vincent J. Gilleo, both of Detroit, of counsel), for respondent Paramount Investment Co.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., and Peter E. Bradt, Asst. Atty. Gen., for defendant State Land Office Board.

SHARPE, Justice.

National Bank of Detroit petitions for a writ of mandamus to compel the State Land Office Board to issue a deed to it of certain lands located in the city of Detroit.

The facts have been stipulated and in substance are as follows: On May 3, 1938, the State of Michigan purchased at the annual tax sale held pursuant to the provisions of Act No. 206, Pub.Acts 1893, as amended, the following described premises:

‘Lots Fourteen (14), Fifteen (15) and Sixteen (16) of plat of subdivision of the Walter Crane Farm, private claim thirty-nine (39) according to the plat thereof as recorded in Liber 5 on page twenty-nine (29) of plats, and more particularly known as the Northwest corner of West Jefferson and Junction Avenues, known as 5600 West Jefferson Ave., located in the City of Detroit, Wayne County, Michigan.’

On November 3, 1939, the State of Michigan acquired title to said premises in fee simple absolute and the State of Michigan received a quitclaim deed from the auditor general of the State of Michigan covering the said premises, which deed was dated November 29, 1939, and was recorded July 3, 1940. The premises were withheld from the auction sale of 1940, held by the State Land Office Board under the provisions of Act No. 155, Pub.Acts 1937, as amended, at the request of the city of Detroit. The taxes on the premises were not redeemed or paid by the municipality; and on March 21, 1941, the premises were offered at the auction sale held by the board. Petitioner was the high bidder at the sale. The amount of petitioner's bid, $5,260, was sufficient under the statute and was paid to the board in cash within 24 hours of the time the bid was made. Petitioner received the usual certificate of purchase.

Thereafter, on April 18, 1941, respondent Paramount Investment Company made application to the State Land Office Board to ‘meet’ the high bid, paid the board one-tenth of the amount of petitioner's bid, and requested a land contract.

At the time of the May 1938 tax sale, Paramount Investment Company had no interest whatsoever in the premises. On March 20, 1941, being the day before the above described auction sale, the investment company entered into an agreement with the agents of Charles T. Tittmann and Lillian Winterhalter, who were owners of record of said premises at the time of the tax sale of May, 1938, whereby the investment company should receive from Tittmann and Winterhalter quitclaim deeds to be executed after the auction sale to be held on March 21, 1941. On April 3, 1941, the investement company paid $3,000, which included agent's commission, to Tittmann and Winterhalter and quitclaim deeds were executed and delivered to the company.

Prior to the institution of this proceeding, the State Land Office Board notified petitioner and Paramount Investment Company it had determined that the investment company was an ‘owner’ of the property entitled, under Act No. 155, Pub.Acts 1937, as amended, to meet the highest bid, and as such would receive a land contract after 20 days. The injunction of this court restraining respondent, State Land Office Board, from conveying the premises was issued before further action by the board; and no conveyance of the premises has been made. Neither petitioner nor Paramount Investment Company has requested or received a return of the moneys paid by them to the board.

On May 26, 1941, petitioner instituted proceedings in this court seeking a writ of mandamus; and on June 3, 1941, this court issued its order directing respondents to show cause to the court why a peremptory writ of mandamus should not be issued to compel the execution and delivery by respondent State Land Office Board of the deed demanded by petitioner.

Subsequent to the signing of the stipulation of facts, the Paramount Investment Company petitioned this court to strike from the stipulation of facts the following sentence: ‘Subsequently, within twenty-four hours of said bid, plaintiff, National Bank of Detroit, made payment in cash of the amount of $5,260.00 to the State Land Office Board.’

Upon the filing of the above petition, we directed that the matter be referred to the circuit court of Wayne county to make a finding of facts as to this issue. The hearing was held before a circuit court commissioner who made the following finding of facts:

That on March 21, 1941, the National Bank of Detroit drew a draft on itself in the amount of $5,410 payable to ‘Tax Bidding Service’, signed by an officer of the National Bank of Detroit authorized to draw such drafts; that on the same day, at approximately 1:30 p. m., the National Bank of Detroit, through its agent, Paul P. Sukenik, made a bid of $5,260 for the premises involved here at the auction of the State Land Office Board; that Paul P. Sukenik on that day, at 2:30 p. m., made payment to the board for that property by depositing with its cashier the draft of the National Bank of Detroit, in the amount of $5,410 endorsed by Sukenik, and received from the cashier of the board a certificate of purchase certifying that the National Bank of Detroit had bid in the described lands and ‘deposited in cash with this Board the full purchase price thereof;’ that the difference between the bid price of these lands and the draft was applied by Sukenik on other lands bid in at the board at that time; that the board accepted the draft of the bank as cash, along with other drafts, cashier's checks, money orders and certified checks and deposited the same the following morning in the Detroit Bank, their financial agent; that the depositary of the board, the Detroit Bank, honored the draft of the National Bank of Detroit on March 22, 1941, and that the draft was later honored by the National Bank of Detroit; and that if, on March 22, 1941, the board had demanded cash in exchange for the draft of the National Bank of Detroit, on its deposit of the draft in the Detroit Bank, the Detroit Bank would have made cash available on the morning of March 22, 1941.

We must first determine whether the finding of facts of the circuit court commissioner modifies the stipulation of facts. It is urged by petitioner that the defendant Paramount Investment Company is bound by the agreed stipulation of facts; and that petitioner complied with the provisions of the statute relative to the payment of cash within 24 hours of the bid.

The legislature in 1899 amended Act No. 20, § 3, Pub.Acts 1842, by Act No. 228, Pub.Acts 1899, which is now 1 Comp.Laws 1929, § 339, which provides:

‘Whenever any check or bank draft shall be tendered for the payment of any debt, taxes or other obligation due to the state or to any municipality therein, such check or draft shall operate as a payment made on the date said check or draft was received and accepted by the receiving officer, if it shall be paid on presentation without deduction for exchange or cost of collection: Provided, however, That no receiving officer shall be required to receive in payment of any debt, taxes or other obligation collectible or receivable by him any tender other than gold or silver coin of the United States, United States treasury notes, gold certificates, silver certificates, or national bank notes.’

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