Price v. Stark

• Citation: 243 N.W. 244,259 Mich. 407
• Decision Date: 23 June 1932
• Docket Number: No. 75.,75.
• Parties: PRICE v. STARK.
• Court: Michigan Supreme Court

259 Mich. 407

243 N.W. 244

PRICE

v.STARK.

No. 75.

Supreme Court of Michigan.

June 23, 1932.

Appeal from Circuit Court, Iosco County; Herman Dehnke, Judge.

Action by W. H. Price against Rudolph Stark. From a judgment for defendant, plaintiff appeals.

Reversed and remanded, with direction.

Argued before the Entire Bench.

POTTER, FEAD, and BUTZEL, JJ., dissenting. A. W. Black, of Bay City (J. L. McCormick, of Bay City, of counsel), for appellant.

N. C. Hartingh, of Tawas City, for appellee.

SHARPE, J.

The record discloses that on January 30, 1907, the auditor general deeded to the state of Michigan the lands here in question under the provisions of the law then in force, being Act No. 206, Pub. Acts 1893, as amended by Act No. 141, Pub. Acts 1901; the same having become state tax homestead land. On March 3, 1911, the state conveyed this land to James Wilson Brooks, and, by mesne conveyances subsequently made, the title rested in James W. Sanderson on April 9, 1926. On June 5, 1928, a state tax deed was issued to W. A. Evans for the delinquent taxes for the year 1924. Notice to redeem therefrom was duly served on Sanderson, and no redemption had. Title thereupon became vested in Evans, who conveyed to the plaintiff on May 21, 1929.

The question here presented is whether plaintiff's title is defective by reason of the failure of Evans to serve a notice to redeem upon the owner and certain tax title holders at the time the land was conveyed to the state on January 30, 1907, as appears by the chain of title then existing.

The first provision in our tax law providing for the issue of state tax homestead deeds appears in the general tax law of 1893, Act No. 206, section 127. It provided that, whenever lands had become delinquent for taxes for a consecutive period of more than three years and no application had been made to redeem or purchase them, the auditor general and commissioner of the state land office, when requested to do so by the township board of the township in which they were situated, should cause an examination to be made of them, and, if it appeared that they had been adandoned by the owner, upon a certificate being filed to that effect the auditor general should transfer them by a deed to the state. Section 130 provided that all delinquent taxes thereon should be canceled, and lands on which taxes had been spread prior thereto were ordered stricken from the tax rolls, and they were thereafter known as state tax homestead lands, and were subject to homestead entry as such. Section 131. The title thus acquired by the state by deed to it from the auditor general must not be confused with that which passes to it on the sale of lands delinquent for taxes, and under which the auditor general may issue a state tax deed to a purchaser from which the owner may always redeem. In 1901, Act No. 141, section 131 was amended to provide that after said lands had been so held by the state subject to such homestead entry for three years or more they should be ‘open to sale and purchase.’ On application therefor it was made the duty of the commissioner of the state land office to examine and appraise the value thereof, and authority was given to him to sell the same at not less than the amount so fixed and to execute a deed therefor, ‘which shall convey to the purchaser the same interest as is provided for a deed where said lands have been homesteaded as provided in this section.’

When held as homestead lands, they were ‘subject to the same rules and regulations now in force as to other homestead lands not inconsistent with the provisions of this act.’

It was also provided: ‘And in all cases where the lands have been taken as a homestead as set forth in last foregoing proviso, all actions of ejectment or to recover possession of said lands or to set aside the title of such homestead by any person, firm or corporation claiming the original or government title, shall be commenced within six months after this act shall take effect, and not afterwards.’

These provisions were in force at the time the land was conveyed by the auditor general to the state in 1907, and by it to Brooks in 1911.

Section 127, as amended by Act No. 107, Pub. Acts 1899, providing for a determination by the auditor general and state land commissioner of the lands to be deeded to the state and thus become tax homestead lands, and that such determination should be conclusive unless suit was instituted to vacate the same, and section 131, in which the time limited for actions affecting the title of the homesteader was limited to six months after the act took effect, came before this court for consideration in Semer v. Auditor General, 133 Mich. 569, 95 N. W. 732. The court sustained the proceedings under which the deed to the state was executed, and held valid the limitation of time fixed in which the homesteader's title might be attacked. See, also, People v. Christian, 144 Mich. 247, 107 N. W. 919, and Jackson, etc., R. Co. v. Lumber Co., 146 Mich. 204, 109 N. W. 257.

In Griffin v. Kennedy, 148 Mich. 583,113 N. W. 756, 757, an action of ejectment was brought by a party whose title was ‘derived from a deed executed under the State tax homestead law’ against a former owner of the land who was then in possession. The opinion, written by Mr. Justice Carpenter, discusses at length the nature of the title acquired by a purchaser under the homestead law and the effect of the provision in Act No. 229, Pub. Acts 1897, providing for notice by a tax title purchaser and the right of redemption thereunder, which it was insisted applied to such purchases. We quote therefrom: ‘I think it a conclusive answer to this argument to point out that at the time Act No. 229 of the Public Acts of 1897 was passed the act under consideration in this case, viz., the act providing for the sale of state tax lands for homesteads, was already upon the statute books. It is clear, and I think it will be conceded, that the Legislature did not intend by enacting said Act No. 229 to affect the disposition of state tax lands under the state tax homestead law. At the time Act No. 229 took effect, the state tax lands were then of two classes: First, those which might be sold for homesteads under the state tax homestead law; second, those which might be sold to purchasers under the general tax laws. In enacting said law, the Legislature did not intend that the land in the first class should be subject to redemption in the hands of a purchaser from the state, but it did intend that land in the second class should be subject to said redemption. Whether a particular description of land belonged to the one or the other of these two classes manifestly could not be determined prior to its sale or classification. Until sold under the general tax laws, any particular description of land might become tax homestead land. It follows, therefore, that the Legislature did not intend to lessen the state's title in state tax lands generally. It intended merely to give owners the right to redeem after the state tax lands formerly owned by them were sold by the state to private purchasers under the general tax laws.’

The validity of the six months' limitation provision was again sustained. The holding in this case was cited with approval in Downer v. Richardson, 148 Mich. 596, 112 N. W. 761;Holmes v. Loud, 149 Mich. 410, 112 N. W. 1109;Chandler v. Clark, 151 Mich. 159, 115 N. W. 65;Haney v. Miller, 154 Mich. 337, 117 N. W. 71, 745; and Beuthien v. Dillon, 160 Mich. 396, 125 N. W. 363. It was considered and reviewed at some length by Mr. Justice Steere in Grand Rapids Trust Co. v. Doctor, 222 Mich. 248, 192 N. W. 641, wherein the rights of a purchaser under a state tax homestead deed were involved. It was therein said (page 253 of 22 Mich., 192 N. W. 641, 642):

‘Under these proceedings the former owner becomes a stranger to the title to the lands so forfeited and deeded to the state. The state takes absolute title to the same in consideration of the taxes he owed, and relieves him from any obligation to pay further taxes thereon. His rights and duties in connection with the land as owner and taxpayer are at an end. The distinction between continuing taxation and tax sales under the general tax laws, and a transfer to the state under this special tax homestead law, is clearly pointed out in the opinion of Justice Carpenter in Griffin v. Kennedy, 148 Mich. 583, 112 N. W. 756. Concurring in that opinion Justice Grant, referring to former decisions, said:

“I am unwilling to cast any doubt upon the many decisions of this court holding that the state acquires the absolute title to these tax lands. The original owner, after decree and sale, may in a proper proceeding attack the title for certain reasons. When the title is in the state, the original owner has no more interest in it than any stranger to...