Tromble v. Hoffman

• Decision Date: 03 June 1902
• Citation: 130 Mich. 676,90 N.W. 694
• Court: Michigan Supreme Court
• Parties: TROMBLE v. HOFFMAN et al.

90 N.W. 694

130 Mich. 676

TROMBLE v. HOFFMAN et al.

Supreme Court of Michigan

June 3, 1902

Appeal from circuit court, Bay county, in chancery; Theodore F Sheperd, Judge.

Petition by Fremont J. Tromble against Charles E. Hoffman and others. From a decree for petitioner, respondent Hoffman appeals. Reversed.

The court will take judicial notice of the times of holding terms of court.

George W. Davis, for appellant.

Chester L. Collins, for appellee.

HOOKER C.J.

The petition in this case is filed by one claiming title to the E. 1/2 of the N.E. 1/4 of a section of land in Bay county, to vacate two decrees for taxes, for the years 1890 and 1891 respectively, under which the lands were bid in for the state in 1893, and subsequently sold and conveyed to the defendant Hoffman by the auditor general. A decree was made in substantial accord with the prayer of the petition, and defendant Hoffman has appealed.

The land in question was unoccupied until Hoffman bought it, when he went into possession. It appears that at the time of the assessment the north 40 acres belonged to a copartnership composed of Archibald Lindsay and Patrick Gamble, and that they were residents of this state, though not of Bay county. The south 40 acres belonged to parties residing in New York named Heath and Rossitier. Both 40-acre parcels were assessed together as the E. 1/2 of the N.E. 1/4, as 'unknown,' both years; and, the taxes being unpaid, proceedings to enforce collection were commenced by the auditor general in the usual way. A subpoena was issued upon the filing of the petition for the tax of 1890 to Heath & Rossitier, which was served upon one Fitzhugh, their agent. Notice was also published as prescribed by law. This was under Act No. 195 of the Laws of 1889. Upon the filing of the petition for the tax of 1891, an order of hearing was made on October 3, 1893, for the 10th of November following, and this was duly published. This was under Act No. 206 of the Laws of 1893. In each case counsel appeared for Heath & Rossitier, and made a successful contest against portions of the taxes levied on the E. 1/2 of the N.E. 1/4, and a special decree was rendered in each case setting aside, as invalid, a portion of the tax, and determining the amount of the valid tax, and these were entered in the margin. Afterwards the general decrees were made upon the petitions, and these referred to and by reference included the special decrees. The lands were sold in 1893 upon both decrees, and came to the possession of Hoffman through the purchase from the state by deed dated December, 1896. The petitioner, Tromble, claims to have acquired title to both parcels. As to the north 40, he received a deed from Lindsay, as survivor of Lindsay & Gamble, dated May 24, 1897, recorded July 14, 1897. This deed states that 'the lands above described are part of the estate of the late firm of Lindsay & Gamble, and said Lindsay is required to make this sale to obtain funds from which to meet the obligations of said copartnership.'

It is claimed, on behalf of the petitioner, that Heath & Rossitier had a title to the south 40, but defendant insists that an undivided one-eighth interest was lacking. In January, 1900, they deeded to petitioner whatever title they had. The petitioner had early notice of Hoffman's claim, for he saw him at work upon the premises, and ordered him to desist, and sent him a letter warning him not to trespass upon any of the lands of Heath & Rossitier, in January, 1896, signed by himself as their agent. In June, 1898, petitioner brought ejectment against Hoffman in the circuit court for the county of Bay, in which he joined with himself, as parties plaintiff, both Heath and Rossitier, and alleged in the declaration that the plaintiffs had owned the land in question in fee simple for upwards of five years prior to June 18, 1898. Before the disposition of this case, and on January 17, 1900, he filed a bill against Hoffman, and sought an injunction to restrain him from cutting or selling timber from the premises. An answer in the nature of a cross bill was filed, setting up defendant's title, and this resulted in an amendment of the bill in which a number of defects were alleged against defendant's title. This was after an order pro confesso for want of an answer to the cross bill had been set aside. While the motion to set aside the order pro confesso was pending, petitioner filed two petitions for leave to file bills of review in the tax proceedings referred to, in which he alleged upon oath that he became the owner of the original title to the north 40 on May 24, 1897, and of the south 40 on June 15, 1900. Upon the hearing of these petitions, they were dismissed. Soon afterwards the petition in this proceeding was filed, and notice that the same would be brought on for hearing on January 14, 1901, was served, with a copy of the petition, upon defendant Hoffman, and presumably upon the auditor general. Hoffman answered, and, before the matter was heard, petitioner filed an application with the auditor general asking that the defendant's tax title be canceled. This was afterwards denied. Proofs were taken in the chancery case, and at the hearing of said cause it was determined to submit the proceedings upon the petitions at the same time; the proofs in the chancery case being used in connection therewith by stipulation.

Did the court get jurisdiction to adjudicate and foreclose the tax lien on the north 40 for the tax of 1890? The entire 80 was assessed as 'unknown.' When the petition was filed, a subpoena was issued, directed to Archibald Lindsay and Patrick Gamble, describing other lands, but not this parcel. It was served on one Henry Gamble. The usual notice was published. Now comes an alleged owner, who attacks this tax title on the ground that Lindsay & Gamble, his grantors, being residents of the state, a subpoena describing these lands should have issued, and been served upon them. The effect of this claim would be to compel the prosecuting attorney to determine at his peril whether the owner of each tract of land is a resident of this state or not, and, if he is, obtain service of process upon him. Failing to do so as to a parcel would be fatal to the jurisdiction. This land was assessed as unknown, and we must assume that it was unoccupied, as the proofs show it to have been. We must also presume that the owner was not known by the supervisor, and that the assessment was regular.

It is urged that under the law of 1889 a failure to serve a subpoena upon the delinquent taxpayer or the actual owner was fatal to the jurisdiction of the court as to the land owned by such persons, and that notice by publication would not cure the defect. We are cited to the following cases in support of this: Taylor v. Devereaux, 100 Mich. 581, 59 N.W. 250; Fowler v. Campbell, 100 Mich. 398, 59 N.W. 185; Coyle v. O'Connor, 121 Mich. 596, 80 N.W. 571. An examination of those cases will show that in no one of them was the land assessed as unknown or nonresident, but inferably, at least, it was assessed to residents. In re Wiley, 89 Mich. 58, 50 N.W. 742, is a case which has some bearing upon this question. The land in that case was assessed to the apparently resident owner, and subpoena was issued against and served upon him; but before its issue he had sold the land, and the petitioner had become the owner. He attacked the jurisdiction upon the ground that subpoena should have issued against, and been served upon, him. The court held otherwise, saying that the 'delinquent taxpayer who is a resident of this state' meant persons against whom the tax was assessed, whose names appear upon the assessment roll. The following quotation is pertinent in this connection: 'The tax law of 1889, under which this proceeding is had, nowhere provides any compensation for the examination of the records in the office of the register of deeds to determine in whom the title of record of the lands returned delinquent for taxes stands, and against whom subpoenas upon the filing of the petition shall issue. It does not provide any compensation to any person for making such searches. It simply provides that the register shall issue a subpoena directed to each delinquent taxpayer who is a resident of this state. The legislature evidently intended that the subpoena should issue and be served upon the person against whom the tax was assessed, and whose name appeared upon the tax roll for that year. It evidently was not the intention of the legislature to make the jurisdiction of the court depend upon the service of the subpoena in that class of cases where the lands were not occupied and were assessed as nonresident, as there would be no means by which the register of the court could determine the real owner of the premises by any search which he might make in the office of the register of deeds, as it frequently happens that deeds are not recorded for months, and sometimes for years, after their execution and delivery. The use of the words 'delinquent tax-payer who is a resident of this state' undoubtedly was intended to apply to persons against whom the tax was assessed whose names appear upon the assessment roll. This section [54] gives the court jurisdiction to enter a decree against such persons, and makes the publication of the notice equivalent to personal service.'

Upon the face of the record, the land was assessed to unknown parties, if not nonresidents. In such a case jurisdiction was obtained by publication, under the interpretation of the statute quoted, and the three chases cited have no application. See, also, Nowlen v. Hall (Mich.) 87 N.W. 222, for a similar case. This is conclusive of the jurisdictional question in the proceedings to enforce the tax of 1890 upon the north...