Sinclair v. Learned

• Decision Date: 03 October 1883
• Court: Michigan Supreme Court
• Parties: SINCLAIR v. LEARNED and others.

16 N.W. 672

51 Mich. 335

SINCLAIR v. LEARNED and others.

Supreme Court of Michigan

October 3, 1883

It is a presumption of law that an officer has performed his duty and the burden of proof is on the party questioning it especially after the lapse of considerable time, unless the circumstances of the case overturn such presumption.

As, in a mortgage foreclosure, notice of sale is an indispensable requisite, and such notice is the act of the party and not of the officer, there is no presumption that such notice was given.

The claimant of land under tax titles which are not subject to a mortgage on the land, and who has no right of redemption cannot make a valid tender of the amount due on such mortgage.

The mere fact that, in foreclosure of a mortgage, the sale was for more than the amount due, and that the surplus was not paid over, will not show that the sale was incomplete, and that no title could, for that reason, pass to the purchaser.

Where parties interested adversely to a mortgage foreclosure allow a period of time sufficient for barring rights of entry to elapse without taking steps to contest the sale, they should not be suffered, in a suit at law, to prove that at some prior time, which may have been still longer before the sale than the period which has elapsed since, they satisfied the mortgage by payment; and in this case the lapse of time without question being made as to the validity of the foreclosure, will constitute such assent as to entitle the purchaser at the foreclosure sale to hold the land as mortgagee at least, if not as owner, except as against proceedings to redeem.

Where a supervisor, in certifying to his assessment for the year, after stating that he had assessed the property described in his roll "at its true cash value," neglects to add the words "and not at the price it would sell for at forced or auction sale," as required by Comp.Laws, � 991, a tax sale based on such assessment is void.

When the board of supervisors, considering the valuation of lands as compared with the other assessments in a county relatively too low, increase it by adding a certain amount to the total assessment, such increase is to be shared alike by both realty and personalty, and the addition of the entire amount by a supervisor to the several assessments of lands on his roll will render a tax sale of land so assessed void.

The tax title contemplated by the act of 1869 is not necessarily a legal tax title, but applies as well to tax titles obtained by purchasers at tax sales that are void for non-compliance with the requirements of the statute.

St.1869, Comp.Laws, � 1141, provides that the tax title claimant shall not be entitled to possession unless he shall, before final judgment, or at the time of entering into possession, have paid the taxes levied subsequent to the date of his deed, or tendered the amount to the person who paid the same, if such person be the one against whom recovery is sought. Held, that plaintiff in ejectment, claiming under a tax deed, must pay or tender the taxes assessed and paid by defendant subsequent to the date of plaintiff's tax deed, with interest, before judgment can be rendered in his favor; and the statute applies to taxes which are invalid for irregularities in the tax proceedings.

Winsor & Snover, for plaintiff and appellant.

Engle & Engle, for defendants.

COOLEY, J.

In this action of ejectment the plaintiff claims the land in controversy under the deeds from the auditor general, given on sales thereof for delinquent taxes of the years 1861 and 1862, and also by a quitclaim deed from the original purchaser from the United States, bearing date in 1880. The defendants, on the other hand, claim to have acquired the title of the patentee through the foreclosure in 1866 of a mortgage given by him in 1859; and as the mortgage does not appear to be disputed, the foreclosure, if valid, would have left nothing for a subsequent quitclaim by the patentee to operate upon. The defendants also claim that the plaintiff's tax titles were cut off by a subsequent sale to Jonas R. Learned, for delinquent taxes of 1874; or, if not cut off, that no suit can be maintained upon them so long as the tax title of 1874 is outstanding in another party than the plaintiff. They also show the payment of taxes by themselves since 1874, and they claim the benefit of such payment under the statute which will be hereinafter mentioned.

Though the evidence of possession is not very distinct, it seems to be assumed in the case that defendants are in possession, and they claim to have taken possession under the foreclosure. Proofs of a regular and complete foreclosure are not however, made. The defendants did not prove the publication of notice of sale, and there was no positive evidence that the sheriff's deed, given on the foreclosure, was filed as the statute requires. It was shown that the register of deeds of the county, at the time the sale was made, kept no books to show the date when such deeds were received in his office, and the case was, therefore, entirely without any direct evidence to show whether the deed was or was not duly filed. On this state of the proofs, the plaintiff disputed the right of defendants to claim any right under the foreclosure.

As the statute (Comp.Laws, � 6920) made it the duty of the sheriff to file the deed immediately, it would seem that the presumption of law that an officer performs his duty ought to prevail until the fact was disproved. This is a very necessary presumption where considerable time has elapsed since the official act was done or should have been done, and it ought to prevail, so far at least as to throw the burden of proof upon the party questioning it, unless the circumstances of the case overturn it. Ward's Lessee v. Barrows, 2 Ohio St. 241; Conwell v. Watkins, 71 Ill. 488; Farr v. Sims, Rich.Eq.Cas. 122; S.C. 24 Amer.Dec. 396; Hilts v. Colvin, 14 Johns. 182; Hartwell v. Root, 19 Johns. 345; State v. Howard, 10 Iowa, 101. This rule was applied in Cofield v. McClelland, 16 Wall. 331, in support of a conveyance of public lands made by a probate judge, which could only be lawfully made after publication of a notice which was not proved to have been given; the court speaking of it as a rule well settled and often applied.

The presumption, however, would not make out for the defendants a legal foreclosure of the mortgage, for the notice of sale was an indispensable requisite, and the notice was the act of the party and not of the officer. The foreclosure was also assailed on other grounds. The plaintiff being on the stand as a witness on his own behalf, his counsel, as the record states, "proposed and offered to prove by him that the mortgagor, Babbitt, went into the army, and before going paid the mortgage debt by lumber taken from the land in question and sold to the mortgagee from under a contract, and for that reason the mortgage was not put on record for several years after its date, after which they recorded and proceeded to foreclose it; that he was present at the foreclosure sale; that the sale was not a fair one and not made in good faith; that the mortgagee bid in the property; that the plaintiff was prepared to bid it in at a much higher price than it was sold for; that he tendered and offered to pay the full sum secured by the mortgage, with interest and costs; that the mortgagee's attorney was willing to accept it, but the mortgagee refused to allow him to pay and discharge the lien of the mortgage; that he bid upon the property a sum larger than the mortgagee had bid, when a party in the interest of the mortgagee called him aside and advised him not to bid, as the surplus would go to the mortgagor, and that meanwhile the sheriff struck off the property to the mortgagee; and that the property, except for this action, would have brought more." Also "that the land was bid off by the mortgagee for more than the amount due, interest and costs, even if nothing had been paid upon it, and that no money or surplus was paid to or deposited with the register of deeds, or paid to the sheriff." All this proposed evidence was objected to by the defendants and ruled out by the court.

It will be noticed that the proposed evidence attacked the foreclosure on four distinct grounds: First, that the mortgage debt had been previously discharged; second, that a tender of the debt was made and refused before the sale was made; third, that the sale was fraudulently conducted; fourth, that the surplus bid on the sale above the mortgage debt was not paid over or accounted for. Notice will be taken of these severally, though not in the order here given.

The tender proposed to be proved appears to have been made by the plaintiff. The objection to it was that the plaintiff was not in position to make it. He was not mortgagor or the grantee of the mortgagor, or in any manner, at that time, interested in the equity of redemption. He had tax titles, it is true, but these were not subject to the mortgage. There was no offer to show that the tender was made for, or in the interest or at the request of, the mortgagor. It was therefore made by one who, as between the mortgagor and mortgagee, was a stranger to their dealings, and an intermeddler. Nothing is plainer than that such a person has no right of redemption. If the mortgagee had accepted the money, he could not afterwards have claimed rights under the mortgage; but it is assumed that he refused it, and this he clearly had a right to do. Lomax v. Bird, 1 Vern. 182; Grant v. Duane, 9 Johns. 591; Smith v. Austin, 9 Mich. 465; Byington v. Buckwalter, 7 Iowa, 512; Eaton v. North, 25 Wis. 514. The alleged tender, if made, was therefore immaterial.

The fact that the sale was for more than the...