Tabor v. Cook
| Decision Date | 23 April 1867 |
| Citation | 15 Mich. 322 |
| Court | Michigan Supreme Court |
| Parties | Lorenzo Tabor v. Addison P. Cook and others |
Heard April 10, 1867
Appeal in chancery from Lenawee circuit.
This was a bill filed to quiet title to certain lands purchased by complainant at a tax sale.
The defendants were in possession under an adverse claim.
A demurrer was filed, and the bill was dismissed.
Decree of the court affirmed.
Bachman & Tatem, for complainant.
Howell & Robinson, for defendants.
Christiancy, J. did not sit in this case.
Cooley J.:
We do not feel at liberty to consider the various questions which are discussed by the briefs in this cause, inasmuch as there is apparent upon the face of the record a fatal objection to the jurisdiction.
The bill is filed to quiet the title of complainant to certain lands purchased by him at tax sales for the taxes of 1859 and which, he avers, are occupied by the defendant, Addison P. Cook, under an adverse claim. There is no law of the state which permits a bill to be filed for such a purpose against a claimant in possession, unless it be "An act to provide for the recovery of taxes paid on real estate by persons claiming title thereto in certain cases," approved March 20, 1865 (Laws of 1865, p. 576), and it appears to be under the supposed authority of this act that the present proceeding is taken.
We think the complainant has mistaken the intent of this statute. It provides that "any person claiming title to lands under or through a conveyance executed by the auditor-general, upon a sale thereof for non-payment of taxes, may commence a suit in the circuit court in chancery of the county where such lands lie, to quiet his title thereto, without taking possession of such lands; and all parties who have, or claim to have, any interest in such lands, may be made defendants in said suits," etc. Under the law as it stood before the passage of this act, no person could file a bill in equity to quiet the title to lands, unless he was in possession thereof (Comp. L., § 3490), and we do not discover in the provision above quoted an intention to extend this remedy except to the case of lands which are unoccupied. Although the terms employed in the act are very general, and authorize "any person" to file a bill, yet we can not shut our eyes to the prior law when endeavoring to arrive at the true construction of this; and as that law required the complainant to take possession before bringing suit, and this act authorizes any person to commence suit without taking possession, it would seem that the particular change designed to be made was to dispense with the necessity of the complainant taking possession where the lands were vacant. If the other party was in possession, ample remedy at law existed before; and the legislature would not be likely to make so radical a change in the law as to authorize a bill in equity in the nature of an ejectment bill, against an adverse claimant in possession, without clearly expressing their intent so to do.
But if the act of 1865 would bear the construction which complainant puts upon it, there is a very conclusive reason why we could not adopt that construction if a different one were possible. It is not in the power of the legislature, under our present constitution, to provide for the trial of titles to land in equity, in the cases which were triable at law at the time the constitution was adopted, unless it shall first make provision for having the case tried by jury if the defendant shall so elect. The constitution (art. 6, § 27) says that "the right of trial by jury shall remain; but shall be deemed to be waived in all civil cases,...
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...506 N.W.2d 209 (1993). This is especially true when determining the constitutional guarantee of trial by jury. See, e.g., Tabor v. Cook, 15 Mich. 322, 325 (1867) ("The intention here is plain, to preserve to parties the right to have their controversies tried by jury, in all cases where the......
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...title to an adjudication. Stockton v. Williams, Wal. Ch., 120; s. c. on appeal, 1 Doug. (Mich.), 546;Moran v. Palmer, 13 Mich. 367;Tabor v. Cook, 15 Mich. 322. But the evidence in this case does not show that complainants when they filed their bill had the possession necessary. Whether wron......
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Madugula v. Taub
...1850, art 6, § 27 ; Const 1835, art 1, § 9. These provisions were derived from the Northwest Ordinance of 1787, art II.47 Tabor v. Cook, 15 Mich. 322, 325 (1867).48 Brown, 335 Mich. at 346, 55 N.W.2d 859.49 Abner A. Wolf, Inc. v. Walch, 385 Mich. 253, 261, 188 N.W.2d 544 (1971) (emphasis ad......
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