Watters v. Kieruj , 242 Mich. 537 ( 1928 )

At his death in 1919 Felix Kieruj was the owner of lot 5 of Fox and Quinn's subdivision of the city of Detroit. Sigmund J. Dziatkiewicz was named executor of the estate and by the terms of the will was directed to reduce all of the property to cash and to distribute it in various amounts to numerous legatees specified. While the estate was pending the property above described was sold at tax sale because of the nonpayment of State and county taxes for the year 1918 and it was also sold because of unpaid city taxes for 1921. The plaintiff herein claims title to this property as the assignee or grantee of the purchasers at these tax sales. She filed a petition for a writ of restitution and also instituted a suit in ejectment; but by stipulation these proceedings were consolidated and a bill of complaint was filed by which the plaintiff seeks to have her title to this property quieted. In the interim the Union Trust Company had been appointed administrator de bonis non of the estate of Felix Kieruj, deceased. The trust company, the former executor, and certain of the legatees were made defendants. These defendants deny the right of the plaintiff to relief, and in cross petitions ask that it be decreed that the plaintiff has no valid title to this property and that upon payment by the defendants of the amounts required to redeem from the tax sales, all claim of title through said tax sales be deemed canceled and released. After the hearing in circuit court a decree was entered in which the relief sought by plaintiff was denied and her title to the premises involved held to be invalid for various reasons set forth in the decree, and the estate of Felix Kieruj was allowed to redeem the property from the tax claims upon payment of certain sums fixed by the court. The plaintiff has appealed.

Numerous questions are presented by the record, but it will be necessary to consider only those that are controlling as to the validity or invalidity of each of the tax titles through which the plaintiff claims. If either title is found to be valid, the plaintiff must prevail; but if neither is free from fatal defects, the defendants are entitled to relief.

1. Has the plaintiff acquired an absolute title through the auditor general's deed given incident to the sale for State and county taxes? This deed bears date of May 7, 1923. The statutory notice of the right to redeem within six months (1 Comp. Laws 1915, § 4138) was served on the executor, Sigmund J. Dziatkiewicz, June 30, 1923, and the return of such service was duly filed with the county clerk. But the same section of the statute also requires service of such notice "upon the grantee or grantees under the tax deed issued by the auditor general for the latest year's taxes then appearing of record," etc. The taxes assessed against this land for the year 1856 were not paid. At the tax sale held in October, 1857, the property was bid in by the State. The statute then in force provided for redeeming the land at any time within one year next succeeding the sale. This parcel was not redeemed. November 17, 1858, the auditor general executed and delivered a deed thereof to Edward S. Snow who had purchased through the auditor general's office. This deed was properly recorded in the office of register of deeds for Wayne county December 2, 1858. Neither actual nor substituted service of the statutory notice was obtained on the grantee in this tax deed. It is urged by the plaintiff that this deed was prematurely issued by the auditor general and was void, but this contention is not well founded. It is further asserted by the plaintiff that at best this tax deed is only an ancient document, long since outlawed, and therefore service on the grantee named therein of notice to redeem should not be required. The statute specifically states the steps which must be taken by the grantee in a tax deed in order to perfect his title, and to these requirements he must conform. The provisions of the statute are mandatory. G. F. Sanborn Co. v. Richter, 176 Mich. 562; Marshall v. Anderson, 233 Mich. 480; Hildie v.Eckhart, 203 Mich. 346. Attention is called by the appellant to the statutory provision (1 Comp. Laws 1915, § 4071) whereby the rights of a purchaser at a tax sale under certain conditions are barred if not perfected within five years after the purchaser is entitled to a tax deed. This provision was not contained in the law at the time the tax deed was issued to Snow and can have no retroactive application. Holmes v. Soule,180 Mich. 526; Jacques v. Bosman, 181 Mich. 495. The statute provides the method by which the plaintiff was required to obtain either actual or constructive service of the notice of the right to redeem upon the grantee in this tax deed which was a matter of record. The plaintiff has not perfected her title, and the defendants have the right to redeem from the sale of this land for State and county taxes. G. F. Sanborn Co. v.Richter, supra.

2. The remaining question for consideration is whether the plaintiff has a valid 99-year lease of the premises in question, which leasehold interest she claims to have obtained incident to the sale of this property for city taxes. The Detroit city charter requires service of notice to redeem, and it is essential that the property should be described with sufficient accuracy to constitute fair and reasonable notice to the party on whom it is served. In the notice to redeem, the description in this case was typewritten and appears in the record in the following form:

"City of Detroit "Lot 5. N. Warren. Fox Quinn Sub'n of west 40 acres of S.E. 1/4 of Sec. 4, T. 2 S., R. 11 E., Springwells Twp., Wayne Co., Mich."

The words "City of Detroit" appear to have been inserted at the head of this notice in typing different from that in the body of the notice. The trial judge found and recited in his decree that the lease from the city of Detroit was void and gave as a reason the following:

"Because the notice required in the charter and claimed to have been served did not contain a correct description of the land as conveyed by the deed as it did not set forth that the land was in the city of Detroit; the words 'city of Detroit' not being in the notice served, and therefore not identifying the property or conveying to the mind of the party the information as to what property was affected by the sale."

This provision in the decree had been preceded by a specific finding of the trial judge wherein he stated:

"I find as a fact that this notice signed by John Faust was insufficient in the description, in that at the time it was signed and filed it did not contain the words 'city of Detroit.' They were added thereafter by some person unknown."

Aside from the notice itself, the testimony concerning it came largely from the witness who served the same. His testimony was conflicting and of an uncertain character, and he appears to have been desirous of favoring the plaintiff's case as much as possible. The circuit judge had full opportunity to hear and observe this witness and to note his attitude while testifying; and we find nothing in the record which would justify us in setting aside the determination of the circuit judge as set forth in the portion of the decree above quoted. Notwithstanding the notice served contained a description which might be sufficient in an ordinary conveyance between individuals, although it did not contain the words "city of Detroit," we are in accord with the circuit judge in holding that the notice to redeem which did not describe this land as being in the city of Detroit was fatally defective because, instead of being fair and reasonable, such a notice would tend strongly to mislead and deceive by its failure to disclose that the land was in fact located in the city of Detroit rather than in an outlying township. In Jackson v. Sloman, 117 Mich. 126, Justice HOOKER said:

"We should, however, note a distinction between cases upon conveyances between private persons, arising out of a sale and intentional transfer, and those where title is sought to be divested through tax proceedings. The requirements as to the description in tax proceedings are not only aimed at securing an identification of the property that will be certain, but are designed to afford notice to the owner that proceedings affecting his property are pending. The description should therefore be such as not to mislead him, if it departs from strict accuracy as stated by statutory rules."

The notice to redeem from the city tax sale was also defective in that it in no way disclosed that it was intended as a notice to the executor of the estate of Felix Kieruj, deceased, or that it pertained to the property of Felix Kieruj or his estate. It was served on Sigmund J. Dziatkiewicz who at that time was acting as the executor of this estate. The Detroit city charter requires service of the notice to redeem on "the owner or occupant of or parties in interest in such real estate, as shall appear by the last recorded deed conveying title thereof." In this case there is no testimony whatever of service upon either the owner or occupant or upon the parties in interest, except the service upon Sigmund J. Dziatkiewicz who was the executor and also a legatee. Notwithstanding there is no provision in the charter for such service, the claim is here made that because of the provisions in the will of Felix Kieruj valid service could be made on his executor. If this be conceded for the purpose of this case, still we are constrained to hold that such a notice to be effective must in some reasonable, clear, and definite manner disclose that it was served on the recipient as such executor or that the property involved belonged to the estate of the deceased. The notice served in the instant case contained no information whatever of this character. In giving the notice a printed form such as is provided for in the city charter was used. This printed form was addressed: "To the owner or occupant or parties in interest of the real estate herein described." The impracticability and the unfairness of such a notice becomes apparent if one contemplates its service upon a trust company having charge of many estates. Omitting to refer to the representative character of the one served or to identify the property as a part of the estate to which it belongs would result in the failure of the notice to serve the very purpose for which it was intended. The following has been said relative to the statutory notice to redeem, and it applies with equal fitness to the Detroit charter provision for redemption:

"This section was designed as a relief to owners of delinquent tax lands, and to prevent the divestiture of their titles, beyond redemption, through ignorance, inattention, or carelessness. It plainly indicates that the purchaser is expected to give an express notice, wherever practicable, with a six-months interval thereafter, within which the land may be redeemed. It imposes upon the purchaser the obligation of good faith, and an earnest effort to ascertain the owner and his whereabouts, and an honest attempt to give him actual notice and the statutory opportunity. Any effort to avoid it through fraud or collusion, or intentional omission to comply with the spirit of this statute, should not be permitted to be effective, if the courts can legitimately avoid it." Winters v. Cook, 140 Mich. 483.

The validity of each of these tax titles held by the plaintiff is assailed on other grounds, but a review of the questions thus presented is unnecessary. The amount the defendants should pay to the plaintiff as a condition of redeeming the land has been fixed in the decree entered in the circuit and no complaint is made concerning the same.

The decree of the lower court is affirmed, with costs to the appellees.

FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ., concurred.

The late Chief Justice FLANNIGAN did not sit.

The late Justice BIRD took no part in this decision.