Vincent v. Evans ( 1910 )

Blair, J.

The complainant in this case purchased in 1903 certain stump lands in the county of Mackinac, in this State, of the executors of the will and estate of Edward Evans, a resident at the time of his death of North Tonawanda, in the State of New York, receiving from such executors deeds purporting to convey the entire interest of the estate in such lands, for which he paid to such executors the sum of $120. The acting executors under the will, and who executed the deeds, were Paschal S. Humphrey, husband of defendant Mary C. Humphrey, a daughter, defendant Nancy C. Evans, the widow, and defendant Henry H. Evans, a son of deceased. The lands had been sold for taxes for many years, and, to protect his title, acquired as aforesaid, complainant purchased certain tax titles and paid a considerable amount of back taxes. In March, 1907, George W. Evans, one of the heirs at law of testator and a residuary legatee, commenced an action of ejectment for the possession of an undivided one-sixth interest in the lands in question. In September, 1907, complainant filed this bill of complaint to stay proceedings at law and to quiet his title and praying for relief as follows:

“By temporary injunction restraining the prosecution of the suit in ejectment, until the further order of said court., and praying that upon the hearing the said temporary injunction be made permanent. That the sale and conveyance of .the said lands made by the executors of the estate of Edward Evans, deceased, be ratified and confirmed, and the complainant decreed to be the lawful own^r of the same. That if there should appear to be any irregularities in the conveyances as executed by the executors of the estate of Edward Evans, deceased, that the defendants might he decreed to be forever estopped by their conduct from making or asserting any claim of right or title to the premises. That the said William Vincent be subrogated to the rights of one Vincent W. Bay-less and Frank Blake, tax title owners, from- whom said Vincent had redeemed tax titles. And that the said William Vincent, as owner of the said tax titles, of which legal notice had been served, and on which the period of redemption had expired, be decreed to be the owner of the said lands free from all liens and incumbrances and all clouds caused by the claims made by the said defendants.”

After hearing the proofs, the circuit judge filed an opinion as a basis for a decree, holding:

‘' That the will did not confer upon the executors power to convey land, and that the deeds therefore 'conveyed no title to the complainant.’ That none of the defendants were estopped from asserting any claim they might have under the will of said Edward Evans, deceased. That complainant had acted in good faith, without gross laches, and was entitled to be subrogated to all the rights of the tax title holders from whom he bought or redeemed tax titles, except as to the northeast quarter (i) of the southwest quarter (i) of section eighteen (18), township forty-four (44) north, range nine (9) west, to which the court held he had legal title through a tax title purchase from one Blake which was foreclosed by notice under the 1897 statute. And that complainant was also entitled to recover back a pro rata share of the amount he had paid on the lands, title to which had failed.”

A decree having been entered in accordance with this opinion, the defendants have appealed to this court.

Counsel for defendants contend that the burden of proof rested upon complainant to show the validity of the proceedings upon which his tax deeds rested and that he utterly failed to make such proof. As to the burden of proof, the decisions of this court sustain defendants’ contention. Taylor v. Deveaux, 100 Mich. 581 (59 N. W. 250); McKinnon v. Meston, 104 Mich. 642 (62 N. W. 1014); Dawson v. Peter, 119 Mich. 274 (77 N. W. 997); Morse v. Auditor General, 143 Mich. 610 (107 N. W. 317). Complainant contented himself with putting in the files in the county clerk’s office, but did not introduce in evidence the original tax record on file in the county treasurer’s office; nor did he introduce any deed from the State to Blake to support the conveyance from Blake to him, and there was therefore no competent, evidence of the validity of his tax deeds. It is said, however, that under the authority of Wagar v. Bowley, 104 Mich. 38 (62 N. W. 293), defendants could not impeach complainant’s tax titles, since they did not specifically state their objections thereto in their answer. The sales under consideration in that case were made under a statute making the tax deeds prima facie evidence of title and the burden of proof was on the party denying their validity, and not, as in this case, upon the party asserting their validity, and defendants argue that this distinction renders the case inapplicable. We are of the opinion that the distinction is well taken. It was said in Wagar v. Bowley that “ the title set out in complainant’s bill was prima facie valid,” etc. The Mississippi cases cited rest upon a similar ground and a similar statute. Since the repeal of the provision making the deeds prima facie evidence “the rule of the common law must be applied and the burden east upon the plaintiff to show a valid decree,” etc. Dawson v. Peter, supra. It is further argued by complainant in support of the decree that—

“It also appears in the record that proper statutory notice to redeem on this particular description was given by Mr. Blake to Mr. Vincent and the year’s taxes given in the notice correspond with those shown in the tax history to have been purchased by Frank Blake. What, then, is the situation on the record ? The notice appears to be in proper form, and the original thereof was produced and offered in evidence from the files in the clerk’s office. The statute provides (Act No. 142, Pub. Acts 1905) that such record ‘ shall b oprima facie evidence in all courts and tribunals that said purchaser is the owner of said land under such purchase.’ In other words, under this statute, the notice, having attached thereto the certificate of the sheriff showing proper service, is prima facie evidence that the purchaser named therein is the owner of the said land.”

The notice was dated May 20, 1903. The certificate of the sheriff showed service on complainant May 27, 1903. Complainant paid the amount required by the notice and received a deed dated July 6, 1903. The provisions of section 142a, Act No. 142, Pub. Acts 1905, only apply where the lands are not redeemed, and therefore the certificate lends no support to the title of Blake, and the proofs did not warrant the finding of the court that complainant acquired the entire title to the 40 acres. We are also of the opinion that the trial judge correctly held upon the record before us that the deeds of the executors conveyed no interest in the lands in question and created no estoppel against Mrs. Humphrey, who witnessed the same. The complainant therefore in a court of equity is not entitled to rely upon these void deeds as furnishing any authority to him to redeem the-lands.

Complainant also offered in evidence several tax deeds, most of which were void upon their faces, as having been executed before the period for redemption had expired. Monaghan v. Auditor General, 136 Mich. 247 (98 N. W. 1021); Fitschen v. Olson, 155 Mich. 320 (119 N. W. 3).

After making certain pecuniary bequests, the will of Edward Evans ( made a part of the bill of complaint) disposed of the residue of his estate, as follows:

“2ndly. All the residue of my property, whether real or personal, I give and bequeath to my beloved children and grandchildren as follows: To Mary C. Humphrey, James E. Evans, George W. Evans, Harrietta J. Grenier, Edward R. Evans, each one-sixth (1-6) of my entire property remaining as aforesaid and the remaining one-sixth (1-6)1 give and bequeath to the living children ( my grandchildren) of my oldest son, Henry H. Evans.”

Who these grandchildren, children of Henry H. Evans, were who were entitled to one-sixth of the lands in question or whether minors or of full age does not appear. They. were not made parties to the suit and were not represented. It further appears from the opinion of the circuit judge “that defendant Edward Evans died before the commencement of this suit, leaving minor heirs. These heirs are, of course, not bound by this proceeding.” All of these grandchildren were necessary parties to the suit and the bill of complaint should have been dismissed unless they were properly made parties and properly represented. Watson v. Brewing Co., 61 Mich. 595 (28 N. W. 726). So far as this record discloses, the complainant has not acquired a title to any of the lands in question, but has acquired certain rights as a tax purchaser, and as assignee of others which he is entitled to enforce by taking the proper statutory steps and which rights will not be cut off by a judgment in the ejectment suit, if, indeed, the plaintiff in such suit can show himself to be entitled to a judgment.

The decree is reversed and the bill dismissed without prejudice.

Bird, C. J., and Ostrander, Moore, and Brooke, JJ., concurred.