Wisner v. Davenport
| Decision Date | 15 July 1858 |
| Court | Michigan Supreme Court |
| Parties | Moses Wisner v. Ira Davenport |
Heard June 12, 1858
Case made after judgment from Genesee Circuit.
The action was ejectment for lands in the township of Atlas.
On the trial before Hon. S. M. Green, at the June term, 1856 plaintiff proved title from the United States.
The defendant gave in evidence deeds in due form, issued upon sales of the same lands for taxes delinquent for the years 1845, 1846 and 1847. Under these deeds defendant claimed title.
The plaintiff, to show the invalidity of said deeds, introduced in evidence the tax rolls for the years mentioned, with the supervisors' warrants annexed, which did not run in the name of the people of the state of Michigan.
The plaintiff also introduced in evidence the township records of Atlas, by which it did not appear that any money was voted at the township meetings, for township purposes, in either of those years. It appeared that for each of said years, the township board voted to raise money, specifying the amount and that the same was assessed and collected uniformly upon the property of the township. Also, that on the settlement with the township treasurer for each year, a balance was found unexpended, which was credited to the several funds to which it belonged. Also, that the amount of accounts audited and allowed in each of said years did not equal the amount so voted and collected, by from twenty to thirty dollars; but the balances were credited to the respective funds from year to year.
The plaintiff also gave in evidence the notices of the tax sales given by the auditor-general and county treasurer; which were the same set forth in the case of Clark v. Mowyer, ante, p. 462.
The court charged the jury, among other things--
1st. That the warrants appended to the tax rolls, not being in the name of the people, rendered the proceedings thereafter illegal; and that defendant's title was, therefore, void.
2d. That the township board had no power under the Revised Statutes of 1838 to raise money for township purposes without a vote of the people. But if they had such power, they had no right to raise more than the accounts audited and allowed.
3d. That the notice of sale is insufficient unless accompanied by an additional notice signed by the county treasurer, designating the place of sale, and published with the regular notice of the auditor-general; and that the posting up of notices designating the place of sale was insufficient.
4th. That, for the above reasons, the jury should find for plaintiff.
Exceptions having been taken to this charge, the case, after judgment for plaintiff, was removed to this court for review upon such exceptions.
Judgment reversed with costs, and a new trial granted.
J. M. Howard, H. H. Emmons, Geo. V. N. Lothrop, and W. M. Fenton, for defendant.
C. I. Walker and M. Wisner, for plaintiff.
The first charge of the court below was clearly wrong. This precise question was decided in Tweed v. Metcalf, 4 Mich. 579.
The second charge was also erroneous, in holding that the township board had no power to raise money for township purposes without a vote of the people. Section 40 of chap. 1,...
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