Magoun v. Walker , 286 Mich. 686 ( 1938 )

In August, 1918, John A. Magoun became the owner of certain real estate in Ogemaw county, Michigan. At the annual tax sale held in May, 1930, the defendants bid in the land for the taxes for the years 1926 and 1927 and received from the auditor general deeds for the same which were properly recorded. March 19, 1936, J. A. Magoun and wife deeded the mentioned premises to plaintiffs herein. October 1, 1930, the defendants caused a notice of reconveyance to be served on John A. Magoun at Sioux City, Iowa, the then owner and last grantee in the regular chain of title of said lands.

Service was made upon Magoun by C.P. Berglund, a deputy sheriff of Woodbury county, Iowa, and return filed October 28, 1930, with the county clerk of Ogemaw county. It appears that when the "return of service" was filed with the county clerk, it did not have a certificate attached to it made by a clerk of a court of record certifying to the official character of the notary public, before whom the deputy sheriff of Woodbury county, Iowa, swore to the affidavit, and to the genuineness of the notary's signature. In May, 1937, a certificate was filed certifying to the official character of the notary public and to the genuineness of his signature to the jurat of the affidavit of the deputy sheriff. In July, 1937, Dwight Arthur, a deputy sheriff of Ogemaw county in 1930, executed an affidavit to the effect that he caused the notice of reconveyance to be served on John A. Magowan [Magoun?] through the deputy sheriff in Iowa. In June, 1936, plaintiffs filed a bill of complaint attacking defendants' title and asking that they be permitted to redeem. The cause came on for trial and the circuit judge held that plaintiffs were entitled to redeem because the original return of the sheriff of Ogemaw county did not comply with the statutory requirements of 1 Comp. Laws 1929, § 3535, and a decree was entered in favor of plaintiffs.

Plaintiffs contend that the return of the sheriff of Ogemaw county, Michigan, was faulty in that the affidavit of C. P. Berglund, who served the notice, failed to have attached to it a certificate of the clerk of a court of record certifying first to the official character of the notary and second to the genuineness of his signature; and that until the certificate of the clerk of the court complying with the law was filed (May 25, 1937) there was no proper return of service which started the running of the six months' period of redemption.

Section 3535, 1 Comp. Laws 1929, in so far as the facts in this case are concerned reads as follows:

"Provided further, that if the person or persons entitled to such notice, or any of them, shall be nonresidents of this State, if from the said record aforesaid, or from inquiry, the sheriff can obtain the postoffice address of such person or persons or if said addresses be known to him, he shall either send to such nonresident person or persons a copy of said notice by registered letter, and return the receipt or receipts of the postmaster received for said letter or letters with his return to the county clerk's office, or said sheriff shall cause to be served personally on such person or persons aforesaid a copy of the said notice, and whenever such notice shall be personally served outside of this State, proof of such service shall be made by the affidavit of the person who shall serve the same, made before a justice of the peace or notary public and when such affidavit shall be made outside this State, it shall have attached thereto the certificate of the clerk of the court of record, certifying to the official character of the justice or notary, and the genuineness of his signature to the jurat of the affidavit, and such sheriff shall return the said proof of personal service with his return to the county clerk's office."

The affidavit of C.P. Berglund, who served the notice on Magoun on October 1, 1930, in Iowa, did not comply with the above provisions of the law. "Substantial compliance with the statutory requirements in such matters is not sufficient."Stockwell v. Curtis, 279 Mich. 388, 392.

See, also, McClure v. Knight, 284 Mich. 649.

The amended return of the deputy sheriff of Ogemaw county, Michigan, or affidavit filed July 7, 1937, cannot relate back and make good that which was not good on October 28, 1930. The same rule applies to the certificate of the clerk of the court of Woodbury county, Iowa, filed May 25, 1937.

In Mallory v. Ward Baking Co., 270 Mich. 91, we quoted with approval from Perkins v.Hayward, 132 Ind. 95, 101 (31 N.E. 670), where that court said:

"A nunc pro tunc entry, in practice, is an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted through inadvertence or mistake."

The period of redemption began to run after a proper return had been filed. The money to redeem was deposited within six months from the filing of the proper return.

The decree of the trial court is affirmed. Plaintiffs may recover costs.

WIEST, C.J., and BUSHNELL, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred. BUTZEL, J., did not sit.