Cook Land, Construction & Producing Co. v. McDonald

Grant, C. J.

(after stating the facts). It is conceded that the tax titles are void. Defendant’s title rests solely upon the adverse possession of more than five years under section 73 of the general tax law (1 Comp. Laws, § 3896). Complainant insists that the statute of limitations provided for in section 73 is repealed by Act No. 229, Pub. Acts 1897, so far as titles conveyed by the State thereafter are concerned. This view was adopted by the court below. This is the principal question in the case, and is before this court for the first time. Notwithstanding the able argument of counsel for the defendant, we think there is no doubt about the effect of Act No. 229. While repeals by implication áre not favored," and while there is no express provision in that act repealing section 73, yet the two are so inconsistent as to limitations of actions thereunder that both cannot be sustained. Section 142, Act No. 229, expressly provides:

“No purchaser under any tax salé 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 land.”

Under section 73 the tax purchaser wás entitled to enter into possession of the land, and a hostile and adverse possession for five years gave him title, regardless of the validity of the deed under which he entered. Section 142 takes away the right of entry and prohibits his entering into the possession of the land until he has given the notice required. This act expressly relates to all future purchases, and not to past purchases. As to future purchases, it is complete in itself. It provides under what condition the tax-title purchaser may enter into possession, and on what terms the original owner may obtain a reconveyance of his land. We held in Corrigan v. Hinkley, 125 Mich. 125, that one who, after acquiring his tax deed, entered into the possession of the land in violation of Act No. 229, was a trespasser. Titles acquired under Act No. 229 are governed by that act, and titles acquired prior thereto are governed by section 73. It follows that the defendant’s entry was unlawful, and that he has acquired no title by adverse possession under it. A question may arise whether section 73 governs a case where, after due service of a valid notice under section 140, and the failure of the owner of the fee to pay in compliance with it, the purchaser from the State has entered into peaceable possession of the land. Upon that question we express no opinion, as it is not involved in this case.

2. The defendant is not entitled to recover for his improvements. Under Corrigan v. Hinkley, supra, he was a trespasser, and was presumed to know the law. The very terms of his deed gave him notice that it was subject to the provisions of that act. He acted in direct violation of its terms, and must be content with what benefits he has obtained from the land during his occupancy. We in that case distinctly held that one entering into possession in contravention of the act could not recover for improvements. The defendant’s occupancy was open, notorious, and hostile. He fenced 25 acres of the land immediately upon acquiring title. He built a house upon it which some four years afterwards was destroyed by fire. He cultivated and raised crops upon it. He seeded a part to grass, and has either harvested the crop himself or has sold it every year of his occupancy, and he has taken wood from the uninclosed part. He has kept up the fences. Under these circumstances, an owner who sits by and sees these improvements going on, and makes no objection thereto, is only entitled to what the law absolutely gives him.

Costs are in the discretion of the court, and the decree will be affirmed, without costs of this court.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.