Rowland v. Doty , 1 Harr. Ch. 3 ( 1839 )

The Chancellor.

The first question that arises in this case is, as to the jurisdiction of this court.

As a general rule, where the bill prays relief, to which the complainant is entitled, and which cannot be had at law, it is sufficient to give this court jurisdiction of the cause.

The bill in this case, after stating that the complainant had paid the tax for which the lot was sold, and being in possession, was unable to divest Doty of his pretended title to the lot by action of ejectment, or any other process at law. whatever, prays that the deed from French to Wilson may be delivered up to be cancelled, as also the conveyance from Wilson to Doty. It also prays that Wilson and Doty may be compelled to assign their claim to the complainant, and for an injunction to restrain them from incumbering the title to the lot, and to restrain Williams from recording the deed from French to Wilson.

Is it competent for this court to afford any part of the relief prayed. Most surely it is.

The jurisdiction of this court, (exclusive of any statutory provision upon the subject,) to set aside deeds and other legal instruments which are a cloud upon the' title to real estate, and to order them to be delivered up to be cancelled, is fully established. Petit vs. Shepard, 5 Paige, 493; Hamilton vs. Cummings, 1 J C. R., 517; Apthorp vs. Comstock, 2 Paige, 482; Grover vs. Hugell, 3 Russ. Ch. Reports, 432; Ward vs. Ward, 2 Hayw. R., 226; Leigh vs. Everharts Ex'rs, 4 Munro R., 380; Hamkshaw vs. Parkins, 2 Swanst. R., 546, 1 Munf. R., 419-Burnett vs. Corporation of Cincinnati, 3 Ohio R., 87; Mitford’s Pl., 87; and there can be no question that there is sufficient stated in the bill to bring the case within the jurisdiction of this court.

But the act to prescribe the mode of proceeding in chancery of 1833, [laws of Michigan, 358, sec. 29,) provides “ that any person having the possession and legal title to land, may institute a suit against any other person or persons setting up a claim thereto; and if the claimant shall be able to substantiate his title to such land, the defendant shall be decreed to release to the complainant all claim thereto, and to pay the costs,” &c., and the bill in this case is framed to come within the provisions of this section.

The facts set forth in the bill are admitted by the demurrer.

The question then is, does the treasurer’s deed, to Wilson, divest Rowland of his title; and is Rowland precluded by that deed from showing that the tax had been paid for which the lot was sold?

By the 13th section of the “act to provide for the assessment and collection of township and county taxes,” (Laws of 1827, page 370,) the tax is declared to be a lien on the land; and if such tax is not paid within a certain time, the treasurer is authorized to sell. The right to sell is, therefore, founded on the fact of the non-payment of the tax. If the tax be paid before the sale, that lien is discharged, and the right to sell no longer exists.

But it is said the treasurer’s deed is conclusive upon this point.

The 14th section of the act provides, “that the treasurer shall, at the expiration of the said two years, execute to the purchaser, his heirs or assigns, a conveyance of the lands so sold, which conveyance shall vest in the person or persons to whom it shall be given an absolute estate in fee simple, subject to all the claims which the territory of Michigan shall have thereon, and the said conveyance shall be conclusive evidence, that the sale was regular according to the provisions of this act.

The conveyance from the-treasurer vests an “absolute estate in fee simple” only where the proceedings throughout have been regular. The right to sell being founded solely on the non-payment of the tax, does not, and cannot exist whenever the tax has been paid. A sale therefore, when no tax is in fact due, is unauthorized, and the treasurer’s deed on such unauthorized sale, conveys no estate or title whatever.

The return by the collector that the tax has not been paid, is such evidence of non-payment only as to justify the treasurer in selling; and his conveyance on such sale is not “conclusive evidence” that all the pre-requisites have been complied with, but is only conclusive evidence that the sale by him was regular according to the provisions of the act.

And this was the construction given to the New York statute (which was substantially the same as ours) in the case of Jackson vs. Morris, 18 Johns. Rep., 441.

Could the legislature have intended that a party who had performed all his duties to the public, should be deprived of his pi’operty in this way! Was it not intended to operate upon those who should not pay their taxes, and not upon those who have, and thus have performed all their obligations'! The obligation is reciprocal: if the citizen performs his duties to the government, the government should perform its duties to him. Among the first of these is protection in his property; it should not be taken from him by the government or its agents without any fault or omission of duty on his part.

It is provided by the statute of Ohio, that “the deed made by the county auditor, as hereinbefore specified, shall be received in all courts as prima facia evidence of a good and valid title in the purchaser,” &c.

In the case of the Lessees of Carlisle vs. Longworth, 5 Ohio R., 374, the supreme court say; “the legislature do not say a deed made by the county auditor ‘ shall be received as prima facia evidence of a good and valid title,’ but the deed ‘ as hereinbefore specified,’ in other words, the-deed made by the auditor jn pursuance of this act. This is the manifest intention. Unless it is made in pursuance of the act, it is made without authority and is void; but if made in pursuance of the act, it is prima facia evidence of title.” And in this case it was held that before the auditor’s deed could be received in evidence, it must be shown that he had authority to make it.

In the case of Steads Ex’rs vs. Course, 4 Cranch R., 403, it was decided that it was incumbent on the vendee to prove the authority to sell.

Chief Justice Marshall, in delivering the opinion of the court in that case, says: “It would be going too far to say that a collector selling land with or without authority, could, by his conveyance, transfer the title of the rightful proprietor.”

In Rules, Lessees vs. Parker, 1 Cooke R., 365, it was held that the sale of lands for the payment of taxes being a summary and extraordinary proceeding, the party claiming title under such proceeding, must show that all the requisites that the law had prescribed to guard against frauds and imposition have been complied with.

And in the case of Williams vs. Peyton's Lessees, 4 Wheat. R., 77, the court say, that where there is a naked power not coupled with an interest, every pre-requisite to the exercise of that power should precede it; and that where lands are sold for the non-payment of taxes, the marshal’s deed is not even prima facia evidence that the pre-requisites of the law have been complied with; but the party claiming under it, must show positively that they have been complied with.

These cases show what the general rule is upon this subject.

It is not necessary in this case to decide whether it is incumbent on the party claiming title under the treasurer’s deed to show affirmatively the regularity of the proceedings, and that all the pre-requisites to the sale have been complied with.

The complainant alledges in his bill that the tax for which the lot was sold, had been paid long before the sale, and it would be a monstrous doctrine for this court to hold that he is precluded by the treasurer’s deed, and cannot go behind it to show that fact.

The demurrer must be overruled, and the motion to dissolve the injunction, denied.