Dow v. State , 46 Mich. App. 101 ( 1973 )

Danhof, P. J.

This is an action by plaintiffs, Carl Dow, Rose Dow, and Marie Smith, to set aside the sale of their real property for delinquent taxes. The trial court granted defendant’s motion for summary judgment on plaintiffs’ cause of action. Plaintiffs appeal. We affirm.

This case comes to us on agreed facts. In substance, the facts show plaintiff Smith was the titleholder of a lot in the City of Grand Rapids. Plaintiffs Carl and Rose Dow were equitable owners of the property pursuant to an existing land contract. The premises were rented to and occupied by others.

Since city property taxes for 1965 in the amount of $35.82 had not been paid, the Auditor General in 1967 designated the Sentinel Leader of Sparta, Michigan, a town some ten miles north of Grand Rapids, to publish the circuit court order and petition for public sale of the property, together with a notice of hearing for the determination of the amount of taxes and interest due.

Sparta, Michigan, had a population of about 3000. The Sentinel Leader, published weekly, had a circulation of about 2000. Grand Rapids, where the property was situated and where plaintiff Smith resided, had a population of about 200,000. Wyoming, Michigan, where the Dows resided, had a population of about 56,000. Kent County, which encompasses the aforementioned cities, had a population of about 411,000.

Plaintiffs received no notice of the delinquency from the county treasurer. Government records do not show notice was sent. Plaintiffs were without actual knowledge of the tax sale, or the circuit court hearing. Government records show no proof of service of notice to anyone of either proceeding other than the newspaper publication.

At the public auction, held in May, 1968, no bids were received; consequently, the state acquired title to the land.

Only Rose Dow received notice of the redemption period, but the records of the Kent County Clerk and Treasurer’s office do not show proof of service by mailing of this notice to any of the plaintiffs. Rose Dow failed to disclose any information concerning the redemption period to either Carl Dow or Marie Smith until after termination of that period on November 2, 1970. Plaintiff Carl Dow then made offers to the state to redeem, but the offers were rejected.

I

Plaintiffs’ first contention is that, in this case, publication of notice of the impending tax sale in a newspaper which has the potential of reaching 1/2 of 1% of the county population, and no other notification, does not satisfy due process of law.

A brief outline of the statutory procedure here involved will aid in the discussion of the issue. The State Treasurer prepares a petition addressed to the county circuit court stating the description of property on which taxes have been unpaid for more than one year after having been returned as delinquent and requesting judgment in favor of the state against the land in the amount specified or sale in default of payment thereof. The county clerk is to notify by mail all persons that local records show taxes on the land to be assessed, but "[failure to receive or serve such notice shall not invalidate the proceedings taken under the state treasurer’s petition and decree of the circuit court, in foreclosure and sale of the lands for taxes”. MCLA 211.61a; MSA 7.106.

Pursuant to the petition, the circuit court orders a hearing for the determination of the delinquency plus interest, and both the Treasurer’s petition and the circuit court order are published for three consecutive weeks in a newspaper designated by the Auditor General. That publication, by statute, is deemed the equivalent of personal service of the notice on all persons interested in the property and gives the circuit court jurisdiction to order sale of the property. MCLA 211.66; MSA 7.111.

The parties are in agreement that all of the mandatory provisions of the statutes dealing with tax foreclosure were complied with. The Sentinel Leader meets the requirements of MCLA 600.1461; MSA 27A.1461 relating to giving of notice by newspaper publication. If there is any merit in plaintiffs’ first contention, we would have to hold MCLA 211.61a; MSA 7.106 unconstitutional in that it directs the county treasurer to send notice by registered mail of the tax delinquency and impending sale to the last known addresses of the persons responsible for payment of the taxes, but further provides that failure to send such notice is not crucial. However, the case is not one of first impression. A similar attack on the constitutionality of earlier Michigan property tax law which provided for notice only by newspaper publication failed before the Supreme Court of the United States. Longyear v Toolan, 209 US 414, 418; 28 S Ct 506, 508; 52 L Ed 859, 863 (1907). In holding that notice of tax proceedings by publication alone did not constitute a violation of the due process requirements of the Constitution of the United States, the Court stated:

"The owner of property whose taxes, duly assessed, have remained unpaid for more than one year, must be held to the knowledge that proceedings for sale are liable to be begun as soon as practicable. * * * The proceedings are inscribed on the public records and otherwise made notorious. If he exercises due vigilance, he cannot fail to learn of their pendency, and that full opportunity to defend is afforded to him. This satisfies the demands of due process of law.”

Furthermore, although Michigan courts might have construed state constitutional requirements more rigorously than those of the Federal Constitution, they have not done so on the issue which confronts us. In Lake Orion Heights v Oakland Circuit Judges, 285 Mich 512, 515 (1938), our Supreme Court held that notice by mail was neither a procedural requirement necessary for jurisdiction, nor was it required by due process:

"The purpose of giving notice, in addition to the publication, is merely to warn the taxpayer of the impending tax sale and to induce him to make prompt payment of the taxes due. The statutory provision is for the benefit of the State and not for the benefit of the individual taxpayer, and failure to comply with the statute may not be objected to by the taxpayer.”

In Golden v Auditor General, 373 Mich 664, 673 (1964), a challenge was made to the statutory requirement for notice only to the parties assessed, without requiring notice to persons whose legally protected interests are affected. There, the court pointed out that the nature of reasonable notice is not a static concept, but depends upon the nature of the proceedings. Where proceedings involve the "regular, annual property tax which the owners must anticipate and pay, knowing the consequences of default”, requirements of notice can be more relaxed than in proceedings which could not have been anticipated by interested parties.

There can be little doubt that the Legislature relied on the above well-established precedent in failing to amend the statutory machinery to require notice by mail as well as publication. Moreover, we are of the opinion that cases decided by the United States Supreme Court since Longyear, supra, have not overruled its holding, even by implication. As was pointed out by the Court in Golden v Auditor General, supra, constitutional requirements of reasonable notice depend upon the nature of the proceedings. Mullane v Central Hanover Bank & Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 865 (1950), involved notice by publication to common trust fund beneficiaries who could not reasonably anticipate the timing of a petition by the trustee for a judicial settlement of accounts. The Court in Mullane was careful to distinguish those proceedings which seek to adjudicate rights in tangible property located within the state:

"The ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the name of law may reasonable be expected to come promptly to the owner’s attention. When the state within which the owner has located such property seizes it for some reason, publication or posting affords an additional measure of notification. A state may indulge the assumption that one who has left tangible property in the state either has abandoned it, in which case proceedings against it deprive him of nothing, * * * or that he has left some caretaker under a duty to let him know that it is being jeopardized.” 339 US 306, 316 (70 S Ct 658; 94 L Ed 865).

In Covey v Town of Somers, 351 US 141; 76 S Ct 724; 100 L Ed 1021 (1956), the court held that a taxpayer known by local officials to be incompetent was not bound in a tax foreclosure proceeding by notice which would have been constitutionally sufficient in the case of an ordinary taxpayer who could reasonably anticipate and understand the proceedings. Walker v City of Hutchinson, 352 US 112; 77 S Ct 200; 1 L Ed 2d 178 (1956), involved the sufficiency of notice by publication of a condemnation proceeding. It is sufficient to point out that a citizen has little reason to anticipate that his property is required by the state for public use, and therefore the case has no relation to the issue that confronts us at present. Cases passing on the constitutionality of laws authorizing seizure of chattels in a person’s possession under a writ of replevin issued prior to hearing and judgment also lack revelance. Inter City Motor Sales v Judge of the Common Pleas Court for the City of Detroit, 42 Mich App 112 (1972); Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972). The state’s interest in the speedy collection of tax revenues can hardly be compared to those of every day creditors in adhesion contracts.

II

Plaintiffs’ last contention is that their redemptive rights in the property did not terminate upon expiration of the redemption period because there was a lack of compliance with the statutory requirements concerning notice of these rights. It is their claim that the proviso of MCLA 211.73c; MSA 7.119(2) was misconstrued by the trial court. In pertinént part the section reads as follows:

"Not later than 120 days prior to the expiration of the redemption period provided in section 74 of this act, the county treasurer of each county shall send a notice * * * The notice to the person to whom such property is assessed shall be * * * sent by registered mail with return receipt demanded, with postage fully prepaid thereon. * * *

’’Provided, That failure to receive or serve such notice or any defect therein shall not invalidate the proceedings taken under the auditor general’s petition and decree of the circuit court, in foreclosure and sale of such lands for taxes.”

In support of their argument, plaintiffs cite Holmes v Soule, 180 Mich 526 (1914); G F Sanborn Co v Richter, 176 Mich 562 (1913); McBride v Closser, 208 Mich 398 (1919); Woodward v Von Zellen, 234 Mich 301 (1926), and McVannel v Pure Oil Co, 262 Mich 518 (1933). None of these cases deal with MCLA 211.73c; MSA 7.119(2), but rather involved situations where a purchaser under a state tax deed failed to give proper notice as required by MCLA 211.140 et seq.; MSA 7.198 et seq. The instant case does not involve a private purchaser under a state tax deed.

Furthermore, since the statutory language is clearly to the effect that failure to give notice of redemptive rights does not invalidate foreclosure and sale proceedings taken under the Auditor General’s petition, we must refer back to the nature of the title derived by the state in these proceedings. Unless the land is redeemed before the expiration of the redemption period, absolute title vests in the state. MCLA 211.67; MSA 7.112. After title to tax delinquent lands becomes absolute in the state, neither the Auditor General nor the county treasurer has authority to accept the defaulted taxes, with interests and penalties thereon, and thereupon release or nullify the state’s title to the property. Langford v Auditor General, 325 Mich 585 (1949). The State Treasurer must convey the land to the state by deed. MCLA 211.67a; MSA 7.112(1). Six months after that deed is recorded in the office of the register of deeds for the county in which the land is situated, no suit can be instituted by one claiming through the original title to set aside the state’s title. MCLA 211.431; MSA 7.661.

In the instant case, no redemption of the subject premises was made within the period provided by law. Nor was any action commenced within six months after recordation of the deed given to the state. The trial court was therefore correct in granting summary judgment in favor of the defendant when plaintiffs tardily instituted this action to quiet title and set aside the sale of the property for delinquent taxes.

Affirmed.

R. B. Burns, J., concurred.