Odgers v. Lentz. Petition of Auditor Gen.

• Decision Date: 03 December 1947
• Docket Number: No. 54,June term.,54
• Parties: ODGERS et ux. v. LENTZ. Petition of AUDITOR GENERAL.
• Court: Michigan Supreme Court

319 Mich. 502

30 N.W.2d 43

ODGERS et ux.

v.LENTZ.

Petition of AUDITOR GENERAL.

No. 54, June term.

Supreme Court of Michigan.

Dec. 3, 1947.

Appeal from Circuit Court, Macomb County, in Chancery; Alton H. Noe, Presiding Judge.

Suit to quiet title by Sydney Odgers and wife against Martha Lentz and another. From a decree quieting title of plaintiffs, the named defendant appeals.

Affirmed.

Before the Entire Bench.

Chas. A. Bryan, of Detroit (Gordon J. Ernst, of Detroit, of counsel), for appellant.

Neale & Hirt, of Mount Clemens, for appellees.

BUSHNELL, Justice.

This is an appeal from a decree quieting the title of plaintiffs to-‘Land in the village of Utica, Macomb County, Michigan, described as Lot 41 of Assessors replate of John Stead's Addition, according to the recorded plat thereof in Liber 13 of Plats, page 48, Macomb County Register of Deeds Office,’ and denying defendants' ‘petition’ for cancellation of certain deeds arising out of a sale of these lands for delinquent taxes.

Plaintiffs Sydney Odgers and his wife, Winnifred M. Odgers, obtained title to the land in question on September 6, 1944, by warranty deed from Pamela B. Church, her title having been obtained by a quitclaim deed dated July 31, 1940, from the State through the State land office board.

Defendants Martha Lentz and one Ruth M. Balzer, the latter not being an appellant herein, claim title to this land by reason of a quitclaim deed to them as joint tenants with right of survivorship executed by Pauline Balzer on August 19, 1941. Pauline Balzer had owned the land for many years, and her grantees claimed in their ‘petition’ that she had always paid the taxes thereon. They stated specifically: ‘That on the 22nd day of September, 1936, she (Pauline Balzer) caused a demand to be made upon the County Treasurer of said Macomb county for a statement of all taxes then delinquent against said lot and was informed that the only taxes then unpaid were the taxes for the year 1935, which she caused to be paid as shown by receipt therefor issued by said county treasurer; that thereafter, and on the 14th day of June, 1937, she caused to be made on said County Treasurer a demand for a statement of all taxes then delinquent against said lot and was informed that the only taxes then unpaid were the taxes for the year 1936, which she caused to be paid as shown by receipt issued by said County Treasurer; that thereafter, and on the 16th day of August, 1938, after the entry of the decree in the above entitled cause, she caused a demand to be made upon said County Treasurer for a statement of all taxes then delinquent against said lot and was informed that the only taxes then unpaid were the taxes for the year 1937, which she caused to be paid as shown by receipt issued by said county treasurer.’

Plaintiffs' bill to quiet title and defendants' ‘petition’ were heard together. The record shows that the State of Michigan acquired title by virtue of a tax sale pursuant to a decree entered April 25, 1938, and a deed from the auditor general dated November 29, 1939, and recorded on April 18, 1940. It is conceded that Pauline Balzer was advised by the county treasurer on September 16, 1940, that the property had been sold by the State to Pamela Church, and that a hearing was had before the attorney for the State land office board on September 27, 1940. The attorney who represented Pauline Balzer at this hearing testified that he opened negotiations at the time with plaintiffs' counsel, looking to a conveyance back to his client, which negotiations continued until November 16, 1943. Various sums were discussed, but to no avail. During the testimony, counsel stipulated on the record as follows:

‘Mr. Neale: Just so that in case some other counsel come into this matter after we are through with it, shouldn't it be concededon the record that the plaintiffs are entitled to a decree in their favor unless there were negotiations either between the parties themselves or by the counsel for the respective parties, that would waive the operation of the one year statute?

‘Mr. Cassidy: I will concede that and concede it is just the question of negotiations.’

In response to the court's statement: ‘It is a question as to such testimony to show an avoidance of the one-year limitation’, defendant's counsel replied: ‘All right.’

Counsel who represented Mrs. Church at the land office board hearing now represents plaintiffs herein, and testified in their behalf. Thus the court had before it all of the available facts regarding the negotiations between the parties.

At the conclusion of the testimony the following discussion took place between the court and appellant's counsel:

‘The Court: Are the proofs all in now?

‘Mr. Cassidy: Yes, your Honor. That is, of course, the, we have an offer of the proof relative to the good faith attempt to pay the taxes, which, as your Honor stated, assuming that was proved--

‘The Court: Without that you couldn't even be here. Without that you wouldn't be in court at...