Griffin v. Kennedy ( 1907 )

Carpenter, J.

This is an action of ejectment. Plaintiff’s title is derived from a deed executed under the State tax homestead law. This deed was prima facie evidence of title (Act No. 211, Pub. Acts 1905), and there was no evidence of any irregularity in the proceedings leading to its execution. Defendant Kennedy was the former owner of the land. The other two defendants were tenants of defendant Kennedy. These tenants occupied the land at the time the auditor general and the commissioner of the State land office determined that it was homestead land. Verdict and judgment passed for plaintiff. We are asked to reverse that judgment

Appellants in their brief argue several questions not presented in the record. Such questions we cannot consider. Under the practice prevailing in this court, we reverse judgments of the circuit court only for the errors shown by the record and complained of in appellant’s brief. In other words, the question of law upon which appellant relies must be presented in the record and argued in his brief. Under this rule, there is but one question in this case for our consideration, and that arises from the contention of defendants that section 127 of the general tax law (Act No. 206, Pub. Acts 1893, as amended by Act No. 107, Pub. Acts 1899), is unconstitutional. That section makes it the duty of the auditor general and commissioner of the State land office to determine when State tax lands shall become State tax homestead lands. Such determination is conclusive unless assailed in the manner pointed out in the statute within six months. In making said determination, said officials must determine, and they are authorized to determine, whether or not the land is occupied; and in the case at bar they determined — and, defendants contend, erroneously determined — that it was unoccupied. We have heretofore decided that the decision of these officers “could not be overturned by a parol showing that it [the land] was not * * * abandoned.” Semer v. Auditor General, 133 Mich. 569. But for the first time we are called upon to consider the claim that the statute is unconstitutional, upon the ground that the making of said determination' is a judicial act which, under the Constitution of this State, must be performed by a court. This argument rests, and must rest, upon the assumption that the former landowner has some rights which are affected by the determination. This assumption is unfounded. The former landowner has no such rights, because before the determination all his rights had been acquired by the State. After the expiration of his right to redeem from a regularly conducted sale at which the State has purchased — and that is the case with the land in question — it (the State) owns and can dispose of the land as it pleases; and this is true, though the former owner of the land continues in possession, for he is in possession without the right of possession. The determination in question was therefore a mere classification of lands owned by the State. It was in no sense a judicial act.

In reaching the foregoing conclusion, we have considered and denied the proposition that the title of the State which would otherwise be absolute (see Connecticut Mut. Life-Ins. Co. v. Wood, 115 Mich. 444; Hickey v. Rutledge, 136 Mich. 128) is lessened or impaired by Act No. 229 of the Public Acts of 1897. This act, which is superseded by Act No. 236 of the Public Acts of 1903, gave owners the right of redemption when the State sells State tax lands under the general tax laws. It has been urged that the legislature, by passing said Act No. 229, intended to convert the title of the State theretofore absolute into a lien analogous to that of a mortgage, and, consequently, to give the original owner of the land an equity of redemption of which he cannot be summarily deprived. I think it a conclusive answer to this argument to point out that at the time Act No. 229 of the Public Acts of 1897 was passed the act under consideration in this case, viz., the act providing for the sale of State tax lands for homesteads, was already upon the statute books. It is clear, and I think it will be conceded, that the legislature did not intend by enacting said Act No. 229 to affect the disposition of State tax lands under the State tax homestead law. At the time Act No. 229 took effect, the State tax lands were then of two classes: First, those which might be sold for homesteads under the State tax homestead law; second, those which might be sold to purchasers under the general tax laws. In enacting said law, the legislature did not intend that the land in the first class should be subject to redemption in the hands of a purchaser from the State, but it did intend that land in the second class should be subject to said redemption. Whether a particular description of land belonged to the one or the other of these two classes manifestly could not be determined prior to its sale or classification. Until sold under the general tax laws, any particular description of land might become tax homestead land. It follows, therefore, that the legislature did not intend to lessen the State’s title in State tax lands generally. It intended merely to give owners the right to redeem after the State tax lands formerly owned by them were sold by the State to private purchasers under the general tax laws. We can and should give full effect to this intent without depriving the State of the right which the legislature clearly intended it should have of disposing of its land under the State tax homestead law, and also, I submit, of disposing of it in any other constitutional way the legislature might afterwards adopt. It is undoubtedly true that said Act No. 229 has the effect of giving to the former owner of the State tax lands a title which formerly he did not possess. See Adkin v. Pillen, 136 Mich. 682. But this title does not come into existence until the sale described in said act has been made. That, it seems to me, was the legislative intent, and I see no difficulty in giving it effect. It may be said that a sale under the general tax laws transfers all the title of the State; part of the title so transferred passes to the purchaser, and part to the original owner of the land, his mortgagee or grantee. I shall not undertake to give a technical name to each of these different titles. We can give effect to the legislative intent without performing that undertaking.

Said section 127 provides that the determination heretofore mentioned shall be conclusive unless it is assailed by suit within six months. As applied to this case, this provision required the defendant in possession to commence suit against an adverse title. This circumstance does not, in my judgment, render the provision unconstitutional under the principle recognized and applied in O’Connor v. Carpenter, 144 Mich. 240. That principle is this:

“One who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another for failure to bring suit against that other within a time specified to test the validity of the claim which the latter asserts, but takes no steps to enforce.” Cooley on Constitutional Limitations (6th Ed.), p. 449.

That principle preserves the rights of the one in possession. 'It applies only where he has rights. In this case defendant in possession had no rights, and therefore the principle has no application. A contrary holding would, in my judgment, require us to say that Semer v. Auditor General, 133 Mich. 569, and Jackson, etc., R. Co. v. Lumber Co., 146 Mich. 204, were erroneously decided. It is true, as pointed out by Justice Ostrander, that under our tax law the former owner in possession of State tax lands may, because Ms land is determined to be State tax homestead land, be deprived of acquiring the right to redeem which his neighbor similarly situated does acquire. This discrimination was authorized by the legislature. It may be unjust.' If so, the legislature, and the legislature alone,, can give relief. It is not unconstitutional.

I think the judgment should be affirmed.

McAlvay, C. J., and Grant, Blair, Montgomery, Hooker, and Moore, JJ., concurred with Carpenter, J. .