People ex rel. Rice v. The Auditor General

• Decision Date: 15 July 1874
• Citation: 30 Mich. 12
• Court: Michigan Supreme Court
• Parties: The People on the relation of William H. Rice v. The Auditor General

30 Mich. 12

The People on the relation of William H. Rice v. The Auditor General

Supreme Court of Michigan

July 15, 1874

Heard July 14, 1874

Application for mandamus.

Mandamus denied, with costs.

G Morris, for relator.

Isaac Marston, Attorney General, for respondent.

OPINION

Campbell, J.:

The relator, in October, 1868, became purchaser at a tax sale of certain lands in Monroe county, sold for taxes of 1867, and obtained a deed therefor, afterwards, on surrender of the certificates.

On the 26th day of September, 1872, upon the trial of an ejectment suit, the circuit court for Monroe county held the tax title void for illegality in certain ditch taxes, which made up the greater part of the tax for which the sale was made.

The relator, having applied to the auditor general, with a proper showing of these facts, and asked him to refund the purchase money, with interest, and that officer having refused, obtained an order from this court requiring respondent to show cause why he should not be compelled by mandamus to refund the money. Cause is shown by demurring to the legal sufficiency of the case made by these facts.

It is admitted by counsel on both sides that the auditor general can only act in accordance with positive law, and cannot refund any moneys upon the failure of tax titles, except as some statute requires it. The state does not guarantee tax titles, except as statutes may provide for it. In all other cases the purchaser must be content with such interests as he gets under his tax purchase.

There are only two statutes claimed by either counsel as regulating the action of the auditor general. One is section 103 of the old tax law, as contained in the amendatory act of 1858: Laws of 1858, p. 190. The other is "an act to authorize the auditor general to refund money paid for taxes and on tax sales in certain cases:" Laws of 1863, p. 196.

The act of 1858 is relied on by the relator, as broader than the act of 1863, and not repealed by it. The language of section 103, is as follows: "In all cases where lands sold for taxes have been conveyed by deed, and the title has been annulled pursuant to law, the auditor general shall, on presentation of a copy of the judgment annulling the same, refund to the holder of said title, the purchase money and interest thereon, as the law requires, and certify the fact to the proper county treasurer."

The first thing that attracts notice in this section is that the judgment which is to create the right to reimbursement is a judgment "annulling" the title. This, when taken according to its terms, would seem to mean a judgment or decree acting directly on the title, and not one where the title has merely been introduced in evidence, and held defective. In an action of ejectment the judgment never refers in terms to any particular origin of title. It simply finds the plaintiff entitled, or not entitled, to a right in the lands. No one can tell from pleadings or judgment whether either party relies on a tax title, and a single judgment in ejectment is not necessarily final for any purpose.

On looking further into the act of 1858, it will be found that section 103 is only a part of a new and peculiar system by which the legislature attempted to provide a new process for ...