Palmer v. State Land Office Bd.

• Citation: 8 N.W.2d 664,304 Mich. 628
• Decision Date: 06 April 1943
• Docket Number: Motion No. 176.
• Parties: PALMER v. STATE LAND OFFICE BOARD et al.
• Court: Michigan Supreme Court

304 Mich. 628

8 N.W.2d 664

PALMER

v.STATE LAND OFFICE BOARD et al.

Motion No. 176.

Supreme Court of Michigan.

April 6, 1943.

Mandamus proceeding by Louise R. Palmer against the State Land Office Board of the State of Michigan and others to compel the Auditor General of the state to grant a hearing to determine whether the plaintiff had made a good-faith attempt to pay taxes on land bid in by state for delinquent taxes.

Issuance of writ of mandamus ordered if necessary.

Before the Entire Bench.

John J. Temple and Robert B. Locke, both of Detroit, for petitioner.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Detroit, and Peter E. Bradt, Asst. Atty. Gen., for defendants.

BOYLES, Chief Justice.

For 15 years prior to February 13, 1940, plaintiff was the owner of certain lands in Allegan county. On petition of the auditor general, the circuit court for Allegan county in 1938 entered a decree for sale of said land for delinquent taxes, and at the annual tax sale held in May, 1938, in pursuance of said decree, the State bid in the property for 1935 delinquent taxes. After the title of the State became absolute, the auditor general deeded the land to the State land office board, and on February 13, 1940, the land office board sold the land at public sale. A certificate of purchase was issued to the purchaser but no deed has been executed and delivered, pending the outcome of this case. Plaintiff, having been informed of the situation too late to match the bid of the purchaser as a former owner of the land, informed the defendants herein that prior to the sale she had made good-faith attempts to pay the taxes for which the land had been sold, but that through the mistake, fraud, wrong or fault of the tax-collecting officials she had been led to believe that the taxes had been paid. Plaintiff requested the auditor general to grant a hearing, and a determination whether or not she had made a good-faith attempt to pay the taxes and had been prevented by the mistake, fraud, wrong or fault of the tax collector. The auditor general refused to act in the matter, plaintiff thereupon filed a petition in this court for the writ of mandamus and we issued an order directing the auditor general to show cause why such hearing shoud not be had, with a determination of the facts, and a certificate to the State land office board of the result. The case is here on petition and answer and briefs filed by the parties.

It is conceded by both parties that plaintiff's rights depend on the statute law in effect prior to the amendments passed by the legislature in 1941, hence no reference is made herein to any changes or additions made in the statute law since 1940. The attorney general concedes that under the 1941 amendments plaintiff would be entitled to the relief sought. Act No. 363, Pub.Acts 1941 (Stat.Ann.1942 Cum.Supp. § 7.951 et seq.), is not retroactive. National Bank v. State Land Office Board, 300 Mich. 240, 1 N.W.2d 525.

Section 98 of the general tax law, 1 Comp.Laws 1929, § 3490, Stat.Ann. § 7.151, as applied to the situation, provided:

‘Whenever any lands returned to the office of the auditor general under the provisions of any of the general tax laws, or to the county treasurer during the life of the tax law of eighteen hundred ninety-one (1891), shall have been sold on account of non-payment of taxes thereon, if the auditor general shall discover before a conveyance of said lands is executed and delivered:

* * *

‘Second, That the taxes had been paid to the proper officer within the time limited by law for the payment or redemption thereof;

* * *

‘The auditor general shall withhold a conveyance of such lands and shall, on demand, cause the money paid therefor to be refunded to the purchaser with interest thereon at six (6) per cent per annum.’

In Hand v. Auditor General, 112 Mich. 597, 71 N.W. 160, the taxpayer relied on the statement of the county treasurer, was misinformed, the taxes were unpaid, the land was sold for delinquent taxes under order of the court and bid in by the State. Hand, a stranger to the proceedings, made application to the auditor general to purchase the State bid, and tendered the money. In the meantime, the former owner, having discovered the situation, tendered the tax to the auditor general, established the fact that he had made a reasonable effort to pay the tax in good faith, was prevented by the mistake of the county treasurer, and the court held he was entitled to cancellation of the tax sale. This was so held by this court under the provisions of section 98 of Act No. 154, Pub.Acts 1895, which is in substance section 98 of the present general tax law (1 Comp.Laws 1929, § 3490, Stat.Ann. § 7.151) now referred to by plaintiff.

In Hough v. Auditor General, 116 Mich. 663, 74 N.W. 1045, the taxpayer appeared before the tax collector, stated he wanted to pay his taxes, was informed of the amount, paid it, there were some other taxes not paid as to which the collector was mistaken and the taxpayer misinformed. The delinquent taxes were returned, later the lands were sold under decree of the court, and deeded to the purchaser by the auditor general. Upon discovery of the facts, the taxpayer filed a petition in the circuit court against the auditor general and the purchaser to set aside the tax sale. The court found that the taxpayer intended and attempted to pay all the taxes, was deceived and misled by the statement of the tax collector, and set aside the decree for the sale, citing Hand v. Auditor General, supra.

A good-faith attempt by the landowner to pay his taxes is equivalent to payment, and the relief that plaintiff now seeks, namely, to compel a hearing of the facts by the auditor general is the only remedy available to plaintiff for relief.

‘While a good-faith attempt by a landowner to pay his taxes to the proper officer, which attempt is rendered unavailing by the mistake or fault of latter, is equivalent to a payment, entitling the former to the benefit either of section 70 or of section 98 of the tax law (Act No. 206, Pub.Acts 1893), providing, respectively, that the court may set aside a sale, in case the tax had been paid, upon application made by the owner within one year after receiving notice of the sale, and that the auditor general, on discovering that a tax had been paid before sale, may withhold a conveyance or issue a certificate of error, as the circumstances may require, the owner must resort to one or the other of the remedies so prescribed, and, not having done so, cannot set up the facts to defeat an action of ejectment brought by the holder of the tax deed.’ Kneeland v. Wood (syllabus), 117 Mich. 174, 75 N.W. 461.

In so deciding, this court said: ‘We think the provisions of this section should receive a liberal construction, to the end that a taxpayer justly entitled to relief may not be cut off from all remedy. Hand v. Auditor General, ,71 N.W. 160. It is held in numerous cases that, if a landowner in good faith applies to the proper officer for the purpose of paying his taxes, and is prevented by the mistake, wrong, or fault of the officer, such attempt to pay is equivalent to payment.’

Mandamus will lie to compel the auditor general to cancel a tax sale and allow the owner to redeem the property from the sale when he has been misinformed by the county treasurer that the lands were not held for any other delinquent taxes. The auditor general's deed to the tax purchaser was cancelled, in Hoffman v. Auditor General, 136 Mich. 689, 100 N.W. 180.

‘Assurance by the county treasurer, at the time a landowner pays his State and county tax, that there are no other taxes standing against the land, is equivalent to payment of any other tax then due, and, in case of a sale, entitles the landowner to have the sale set...