Wagar v. Bowley

• Decision Date: 12 February 1895
• Citation: 62 N.W. 293,104 Mich. 38
• Court: Michigan Supreme Court
• Parties: WAGAR ET AL. v. BOWLEY ET AL.

62 N.W. 293

104 Mich. 38

WAGAR ET AL. v. BOWLEY ET AL.

Supreme Court of Michigan

February 12, 1895

Appeal from circuit court, Osceola county, in chancery; J. Byron Judkins, Judge.

Bill by Warren A. Wagar and Samuel Brandow against Gideon Bowley and others to quiet title held under a tax ded. From a decree dismissing the bill, complainants appeal. Reversed.

M. A. Lafler, for appellants.

C. H Rose, for appellees.

MONTGOMERY J.

This suit was instituted to quiet the title to 80 acres of land in the county of Osceola. The bill alleges that the complainants are owners, deriving title under deeds from the auditor general on sales of the land for taxes, for the years 1872 to 1880, both inclusive; that complainants are in possession that defendants set up a title adverse to complainants. The answer admits the sale of the land for taxes as charged in the bill, and denies "that by said deed any title whatever passed to said complainants, or that any interest thereto in said premises passed or was conveyed to said complainants by said deed." The answer nowhere sets out any facts tending in any way to impeach the validity of the tax deeds. Defendants did set out, however, ownership in themselves by title derived from government. On the trial defendants sought to introduce testimony tending to show the invalidity of the tax deeds, whereupon complainants objected on the ground that the alleged errors in the proceedings were not set up in the answer. This objection was overruled, and the case proceeded. After the proofs were closed and the case submitted, defendants submitted an application "to open proofs and to introduce additional testimony, which application was granted. The application stated that, as to the tax title of 1875, the only objection actually raised was one touching the mill tax, which defendants' counsel at the time considered excessive, and that said objection was raised on the theory that the mill tax should have been spread upon the assessed and not upon the equalized valuation of the township, and that on a thorough investigation of the statute in force he had reached the belief that the mill tax was properly assessed upon the equalized valuation of the township. It further sets out that in preparing his brief for the trial of the cause he had noted other objections to the tax deed of 1875, but that through the fault of his clerk that portion of his brief was mislaid, and that for these reasons the questions had not been raised. These statements in the application were quite as general as were those in the answer. There was nothing to apprise the court or the complainants of the facts which defendants would seek to prove in case the application should be granted. After the granting of the application, notice was served on complainants' solicitor of taking further testimony, and he declining to appear, the defendants put in the testimony upon which they now rely to show the invalidity of the tax.

We think the practice pursued in this case was so far irregular and unwarranted that the decree ought not to stand. The title set out in complainants' bill was prima facie valid, and if defendants desired to impeach this title it was their duty to set up specifically their objections, and set up facts which, if proven, would defeat the tax sale. Griffin v Dogan, 48 Miss. 11; Meeks v. Whatley, 48 Miss. 337; Belcher v. Mhoon, 47 Miss. 613. See, also, Gamble v. East Saginaw, 43 Mich. 367, 5 N.W. 416; Jenn. Ch. Prac. 79; Match v. Hunt, 38 Mich. 1; Dale v. Turner, 34 Mich. 405; Fosdick v. Van Husan, 21 Mich. 567; Van Dyke v. Davis, 2 Mich. 145. It is in general within the discretion of the trial judge to open a cause for further proofs at any time before decree, and...