Wyman v. Baer
| Decision Date | 29 June 1881 |
| Citation | 46 Mich. 418,9 N.W. 455 |
| Court | Michigan Supreme Court |
| Parties | WYMAN and another v. BAER. |
Where there were two affidavits of publication of notice of foreclosure offered in evidence, the first being insufficient and the latter sufficient, and showing proper publication and accompanied with testimony of the party making the affidavits to the effect that the publication was correct and the original affidavit inaccurate, held, that the matter should have gone to the jury. Four lots in one block were assessed for taxation together at a gross sum. A portion of the amount assessed was received by the collector as the tax of one lot and a portion of another, and the remainder returned delinquent. Held, that a tax title based thereon was invalid.
Error to St. Clair.
O'Brien J. Atkinson, for plaintiff in error.
Avery Brothers, for defendant in error.
Baer brought ejectment for certain premises situated in St. Clair county and known and designated as lots 7 and 8 and the east 20 feet of lot 6 in block 33 of the village of Fort Gratiot. The action was tried before a jury and at the close of the evidence the circuit judge directed a verdict in favor of the plaintiff. The general question is whether the circuit judge was warranted in refusing to take the sense of the jury on the facts. The plaintiff claimed title by purchase on sale made by the sheriff on a foreclosure of a mortgage made by William D. Wright to the plaintiff in 1873 and one of the main subjects of controversy at the trial was whether this foreclosure was valid or not. The sale was made in 1877, and the affidavit then made by the publisher of the newspaper to perpetuate regular proof of publication of the notice of sale imported that the notice had not been sufficient. Two years later the same person made another affidavit which assumed to correct the first and show that in fact the notice was duly published, and both affidavits were introduced as evidence before the jury. He also testified as a witness on the subject and gave evidence tending to show that the sale was regularly advertised and that the original affidavit was inaccurate through mistake.
It will be seen from this that the evidence to show a valid notice was conflicting and the defendant made it the subject of a specific request. The admission of the evidence to prove that in point of fact there was lawful notice was entirely proper. But it was not competent for the...
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