Weimer v. Porter

• Decision Date: 23 January 1880
• Citation: 42 Mich. 569,4 N.W. 306
• Court: Michigan Supreme Court
• Parties: ORLANDO B. WEIMER and others v. JAMES B. PORTER.

4 N.W. 306

42 Mich. 569

ORLANDO B. WEIMER and others v. JAMES B. PORTER.

Supreme Court of Michigan

January 23, 1880

Where a defendant on ejectment, claiming under tax title, seeks to recover the amount paid by him for taxes, he cannot prove such payment by the receipts alone, but must produce the assessment rolls. A claim of defendant in ejectment for the taxes paid by him cannot be enforced in that action, but must be by an action or proceeding supplemental or subsequent thereto, and on the equity side of the court.

Randolph Strickland, for plaintiff in error.

O.L Spaulding, for defendant in error.

GRAVES J.

The plaintiffs in error sued in ejectment on certain tax titles and the case being tried by the circuit judge without a jury he ruled that they were not valid.

The plaintiffs in error then offered evidence to show that they had paid certain taxes assessed against the land subsequent to their tax titles, and claimed the right to recover therefor on the trial of the ejectment, under Comp.Laws, � 1131.

The evidence so offered consisted wholly of tax receipts, and on objection the judge refused to receive it. The ruling was correct. Apart from other objections the treasurer's receipts to the plaintiffs in error were not evidence to charge the defendant in error. The fact to be proved called for the assessment rolls. But there was another difficulty. The claim was not triable at the same time with the ejectment. The statute contemplates that the tax title asserted by the claimant shall be adjudged against him before he can enforce a lien upon the premises; and it does not imply that in the same proceeding and at the same time when he is asserting an absolute and exclusive title which the law deems prima facie valid, he may set up and enforce a lien upon the land for a demand against another.

There must first be a judgment for the "recovery of such land," or against the person holding the tax title, as preliminary to any other proceeding; and of course the right to prosecute or litigate a claim for subsequent taxes is postponed until the rendition of the judgment. Such claim cannot be prosecuted in the same trial which is terminated by the judgment. The law apparently intends that it shall be a supplementary proceeding and be conducted on the equity side. It is provided that in case default is made in payment the court shall decree a sale, etc.

The relief is to be specific, and the...