Andre v. Fink

180 Mich. App. 403 (1989) 447 N.W.2d 808

ANDRE
v.
FINK

Docket No. 108678.

Michigan Court of Appeals.

Decided October 2, 1989.

Legal Services of Southeastern Michigan, Inc. (by Robert R. Gillett and Sheila Spalding Blakney), for plaintiff.

Ward, Hopper, Sorini, P.C. (by Judith A. Ward), for Donald Fink, Richard Kightlinger and Kightlinger/Fink Properties.

Before: MacKENZIE, P.J., and HOOD and GRIBBS, JJ.

PER CURIAM.

Defendants Donald Fink, Richard Kightlinger and Kightlinger/Fink Properties (hereinafter defendants) appeal as of right from an order granting summary disposition in favor of plaintiff. We affirm.

This case involves competing claims to certain residential property located in Ann Arbor. Plaintiff purchased the property on land contract in 1963 from John and Harriet Swisher, whose title to the property had been recorded. In 1982, the Swishers deeded the property to plaintiff. That deed was not recorded, leaving the Swishers as owners of record.

At a 1984 tax sale, Richard and Linda Don purchased the property for the unpaid 1981 property taxes. The following year, the Dons received a tax deed to the property from the Department of Treasury. Plaintiff apparently redeemed the property from the Dons. On March 26, 1986, the Dons quitclaimed the property back to plaintiff. Both the tax deed to the Dons and the quitclaim deed to plaintiff were recorded on April 8, 1986.

Meanwhile, at a 1985 tax sale, defendants had purchased the property for the unpaid 1982 property taxes. They were granted a tax deed on June 11, 1986.

MCL 211.140(1); MSA 7.198(1) provides in relevant part:

A writ of assistance or other process for the possession of land the title to which was obtained by or through a tax sale ... shall not be issued until 6 months after there is filed with the county treasurer of the county where the land is situated, a return by the sheriff of that county showing service of the notice [signed by the tax deed holders] prescribed in subsection (2) [giving notice that the tax deed has been issued and that the recipient has 6 months to redeem]. The return shall indicate that the sheriff has made personal or substituted service of the notice upon the following persons who were, as of the date the notice was delivered to the sheriff for service:

(a) The last grantee or grantees in the regular chain of title of the land, or of an interest in the land, according to the records of the county register of deeds.

(b) The person or persons in the actual open possession of the land.

(c) The grantee or grantees under the tax deed issued by the state treasurer for the latest year's taxes then appearing of record in the registry of deeds.

Defendants served the required notice on plaintiff on August 4, 1986. They did not serve notice on the Swishers or the Dons. Approximately seven months later, on March 1, 1987, plaintiff tendered to defendants $3,828.30, the amount stated in defendants' notice as the amount necessary to redeem. Defendants refused the tender as untimely, prompting plaintiff's instant action to redeem.

The trial court held that defendants failed to strictly comply with the notice provisions of MCL 211.140(1)(a); MSA 7.198(1)(a) when they did not serve notice on the Swishers. The court concluded that, in light of this noncompliance, the six-month period in which plaintiff could redeem the property never began to run and plaintiff's March, 1987, tender was thus timely.

On appeal, defendants claim that they were not required under MCL 211.140(1); MSA 7.198(1) to serve notice on the Swishers because plaintiff — not the Swishers — was the "last grantee or grantees in the regular chain of title of the land ... according to the records of the county register of deeds" by virtue of the 1986 quitclaim deed from the Dons to plaintiff. We disagree.

In Griffin v Jackson, 145 Mich. 23, 27-28; 108 N.W. 438 (1906), our Supreme Court construed the meaning of the phrase "regular chain of title" contained in the redemption notice provisions of the act of 1899. The Court determined that "regular chain of title" meant the chain of title arising out of the patent or the original government title and did not include the chain of title originating in the tax deed. The Court found support for this construction in the fact that the Legislature had later amended this statute to specifically require notice to both the record title holders under the regular chain of title and to those whose title is rooted in a tax deed. Id. at 27. This distinction between the regular chain of title and title arising out of a tax deed has been consistently maintained, see G F Sanborn Co v Richter, 176 Mich. 562; 142 N.W. 755 (1913), Mercer v Stephens, 185 Mich. 290; 151 N.W. 1032 (1915), and Duck v McQueen, 263 Mich. 325; 248 N.W. 637 (1933), and is supported by the construction of the present statute which provides for notice to both classes of title holders.

Applying Griffin, G F Sanborn, Mercer, and Duck, supra, to this case, plaintiff is not the "last grantee in the regular chain of title" since her record title is rooted in a tax deed. Instead, with plaintiff's deed from the Swishers unrecorded, the Swishers are the last grantees of record in the regular chain of title.

Michigan courts have long held that, because the effect of proceedings under the tax law is to divest the true owners of their title to property, strict compliance with the notice requirements of the statute is required. McVannel v Pure Oil Co, 262 Mich. 518, 522; 247 N.W. 735 (1933); St Helen's Resort Ass'n, Inc v Hannan, 321 Mich. 536, 543; 33 NW2d 74 (1948); Stein v Hemminger, 165 Mich. App. 678; 419 NW2d 50 (1988), lv den 430 Mich. 896 (1988). Defendants' failure to serve notice on the last recorded grantees in the regular chain of title bars defendants from asserting title by reason of their tax deed and tolls the running of the six-month redemption period. MCL 211.73a; MSA 7.119. The fact that an unserved interest is void or has been extinguished, as was the Swishers', is irrelevant to the necessity of serving them notice. Watters v Kieruj, 242 Mich. 537; 219 N.W. 673 (1928); United States v Varani, 780 F2d 1296, 1299 (CA 6, 1986).

Defendants also assert that plaintiff should be estopped from denying that she was the sole title holder to the property. This assertion is based on defendants' claim that sometime around August 4, 1986, plaintiff told defendants she had paid off her land contract and received a deed from the Swishers. The general rule in Michigan is that title to land may not be obtained by estoppel, absent fraud. Bruun v Hansen, 281 Mich. 362, 364; 275 N.W. 173 (1937); Schram v Safety Investment Co, 39 F Supp 517 (ED Mich, 1941).

There is no evidence of fraud in this case. Plaintiff merely told defendants she received a deed to the property. It was defendants' responsibility to comply with the notice provision as set forth in MCL 211.140; MSA 7.198, including checking the records of the register of deeds. It was not reasonable for defendants to rely on the statement by plaintiff as to the record status of title for statutory notice purposes. Principles of estoppel are inappropriate under these circumstances.

Affirmed.