Lawson v. Bishop ( 1920 )

Clark, J.

(dissenting). In September, 1900, plaintiff received from the auditor general a tax deed, taxes of 1885 and 1886, of N. E. % of N. W. section 33, township 13 north, range 17 west, Michigan, and a tax deed, taxes of 1891-1894 of N. % of N. W. %, section 33, said township, and in December, 1901, three tax deeds, taxes of 1895-1897, respectively, of said 80-acre tract. Each deed contained the following proviso:

“Provided, however, that this indenture is subject to the relevant conditions imposed by Act No. 229 of • the Public Acts of 1897.”

The important part of the act is section 142 thereof (1 Comp. Laws 1915, § 4140):

“No purchaser under any tax sale hereafter made or of any State tax land or any State bid hereafter sold shall enter into possession of the land so purchased until six months after he has given notice to the party or parties in interest as provided for in the preceding sections unless he shall have acquired from said parties their title thereto under conveyance from said party or parties of his or their interest in said lands.” * * *

No notice was given as provided by the statute. The plaintiff took possession of the 80 acres in 1900, “as soon as he got his.first deed,” which possession, was continuous by plaintiff and his tenants and for a short time by a grantee of plaintiff of a part of the land (in November, 1917), later reconveyed to plaintiff, to the time of commencing the suit, September, 1919. The defendant John Bishop on April 12, 1919, received by quitclaim deed of the 80 acres the title of the last holder thereof in the regular chain of title and in 1909 defendants John Bishop and Emma Bishop, his wife, received a quitclaim deed from Warren W. Britt, who, in April, 1904, received from the auditor general three tax deeds, one of the N. E. % of N. W. % of said section- for taxes of 1881-1884, 1887, 1888, another of the N. W. % of N. W. % of said section for taxes of 1887-1889 and the other-of the N. % of N. W. ^4 of said section for taxes of 1890. ■These deeds, under which defendants Bishop and wife claim, were recorded. In April, 1919, following the quitclaim deed first above mentioned, defendant John Bishop claimed to be the owner of the 80 acres in question, so advised plaintiff by letter, and caused a notice against trespassing to be posted on the land. Plaintiff in possession then filed his bill to quiet title, claiming to be the owner of the land under and by virtue of his tax deeds and also claiming by adverse possession under the general statute of limitations, 8 Comp. Laws 1915, § 12311.

Defendants Bishop and wife answered and denied that plaintiff had any right or title to the land and by cross-bill claimed title in themselves by reason of the aforesaid deeds, and asked that such title in them be quieted.

Defendant Williams was named as mortgagee in a mortgage made in 1866, appearing of record undischarged, covering the land in question, and defendant Gurney was the grantee in certain tax deeds covering part of the land, recorded in 1901. After hearing the circuit judge filed' an opinion from which we quote:

“The bill filed by the plaintiff claims title to the property and that he has been the owner thereof for a period of more than 15 years prior to the filing of the bill, claiming under and by virtue of five tax deeds covering the land in question.

“No notice was ever given under these deeds and the plaintiff went into possession immediately after securing the deeds. He claims, and the evidence fairly establishes, that he has been in continuous possession of this land ever since he went into possession thereof, which would be for a period exceeding 15 years from the commencement of such possession.

“The defendants claim that because the plaintiff went into possession under the tax deeds without giving notice, he was a trespasser and acquired no right to the land, nor was he entitled to go into the possession thereof, citing the cases of Cook Land, etc., Co. v. McDonald, 155 Mich. 175; Corrigan v. Hinkley, 125 Mich. 125; Holmes v. Soule, 180 Mich. 526; also Huron Land Co. v. Robarge, 128 Mich. 686.

“I am. of the opinion that the defendants’ claims with reference to this matter is correct, and that plaintiff is therefore not entitled to a decree, for the reasons stated.”

Decree was entered dismissing the bill, and the cross-bill. Plaintiff has appealed.

By the briefs of counsel the important question presented is: Because of the above quoted section 4140, 1 Comp. Laws 1915, section 142, Act No. 229, Pub. Acts 1897, making entry into possession of the land by the purchaser under any tax sale or of any State tax land, or any State bid unlawful until six months after the required notice had been given, Is the plaintiff without right under the general statute of limitations, section 12311, 3 Comp. Laws 1915, chapter 9, judicature act of 1915, to claim any benefit of his possession for more than 15 years?

Plaintiff took possession of this land as a purchaser under a tax sale, as a purchaser under the tax deeds, without giving the notice required, by statute, sections 4188-4140, 1 Comp. Laws 1915. The possession was unlawful. It was forbidden by statute. The plaintiff is not aided by such possession, though continued beyond the statutory period.

In Holmes v. Soule, 180 Mich, at page 530, Justice Ostrander, speaking for the court, said :

“Defendants own the tax title and the land, subject to the right of complainant to redeem — a right which in law had not been extinguished because no proper notice to redeem has ever been given. Defendants are not aided, in law, by having occupied the land, if in fact they have occupied it (a fact not found by the trial court, and of which the testimony is not convincing), because they had no right to its possession. Corrigan v. Hinkley, 125 Mich. 125; Huron Land Co. v. Robarge, 128 Mich. 686; Holmes v. Loud, 149 Mich. 410; Cook Land, etc., Co. v. McDonald, 155 Mich. 175; Morrison v. Semer, 164 Mich. 208; White v. Dunsmore, 167 Mich. 542; Powell v. Pierce, 168 Mich. 427; McRae v. Barber, 171 Mich. 111.”

See, also, Closser v. Remley, 195 Mich. 313; McBride v. Closser, 208 Mich. 398.

In Cook Land, etc., Co. v. McDonald, supra, decided December 21, 1908, it was held that the statute of limitations provided for in section 73 of the tax law, section 4070, 1 Comp. Laws 1915, had been repealed by Act No. 229, Pub. Acts 1897, section 142 of the tax law, section 4140, 1 Comp. Laws 1915. See, also, Holmes v. Soule, supra. In the later decisions above cited where reference is made to the statute of limitations as regards possession or adverse possession such reference must be held to be to the general statute, 3 Comp. Laws 1915, § 12311.

Whether the tax deeds to Britt are valid or invalid (see Auditor General v. Clifford, 143 Mich. 626) it is now unnecessary to determine, Britt having conveyed to Bishop and wife. The defendants John Bishop and Emma Bishop, not having appealed, cannot be given here the relief prayed against the plaintiff, nor can they be relieved as against the other defendants.

The decree should be affirmed, with costs of this court to defendants John Bishop and Emma Bishop.

Brooke and Fellows, JJ., concurred with Clark, J.