Cotzhausen v. Kaehler

The following opinion was filed at the January term, 1877: LyoN, J. This is an appeal from a judgment for the plaintiff in an action of ejectment. The plaintiff’s title to the lands in controversy depends upon the validity of four tax deeds introduced in evidence by him on the trial of the cause. Assuming the deeds to be in proper form, they make a prima facie case for the plaintiff. Eaws of 1859, ch. 22, sec, 25 (Tay. Stats., 435, § 161). To impeach these tax deeds, the defendants introduced certified copies of the records in the office of the county treasurer of the proper county, relating to the return of the lands in controversy by the respective town treasurers to the county treasurer for nonpayment of the taxes for which the lands were afterwards sold, and upon which sales the tax deeds in question were executed. This record contains no affidavit (as required by the statute) of either of the town treasurers making such returns. E. S., ch. 18, sec. 95 (Tay. Stats., 422, § 113). The defendants satisfactorily proved that the county treasurer’s office contained no records in respect to such returns other than those of which certified copies were thus introduced, and this proved, prima, facie at least, that none of the returns of the town treasurers were verified, Such proof was not' rebutted, and 'hence, for the purposes of this appeal, it must be assumed that each of those returns was unverified by the affidavit of the town treasurer, required by law to be annexed thereto. We are of the opinion that without such verification the county treasurer had no authority to sell the lands so returned delinquent, and hence, that the sales based upon such unverified returns, and the tax deeds founded on such sales, are void. It is only when lands are returned delinquent “ as provided, by law,” that they are subject to sale for unpaid taxes (Laws of 1859, ch. 22, sec. 1; Tay. Stats., 427, § 131); and the lands in [334] controversy were not thus returned. The return of lands for the nonpayment of taxes is one step in the direction of divesting a person of his property without his consent, and, in any event, may be the cause of much inconvenience and expense to the owner; and full effect should be given to all provisions of the statute having for their object the protection of such owner from the consequences of having his lands illegally returned delinquent. Such, we think, was. the object of 'the provision requiring the town treasurer to verify the delinquent list returned by him to the county treasurer by his affidavit that the taxes on the lands returned are unpaid. We do not see how that object can be attained, unless we hold (as we do hold) that if the verification be wanting, all subsequent proceedings in respect to the sale and conveyance of the lands returned are at least voidable, if attacked within the time limited by the statute of limitations, and in the manner authorized by law. It is claimed in the argument of the learned counsel for the plaintiff, that the answer of the defendants admits that the title to the lands in controversy is in the grantee named in some of the tax deeds, and hence, that the defendants could not be heard to deny the validity of such deeds. We do not so understand the answer. It contains a denial of each and every allegation in the complaint, and merely admits that such grantee “was the owner of all the right, title or interest in said premises, if any there was acquired or to which such owner might be entitled ” by virtue of some or one of the above mentioned tax deeds. This falls far short of an admission that such grantee was, in fact, the owner of the lands by virtue of such tax deed. It is an admission of the existence of the deeds, not of their legal effect. Numerous other questions were argued at the bar with much ability. Some of them are so important that we feel justified in leaving them undetermined until they can be considered by a full bench. [335] Tbe determination of tbe question as to tbe effect upon tbe tax deeds of tbe want of a verified return of tbe lands as delinquent, is decisive of the case as presented in tbe record before us, and we have concluded to leave all other questions undecided. By the Court. — The judgment of tbe circuit court is reversed, and tbe cause remanded with directions to dismiss tbe complaint unless tbe plaintiff satisfies tbe court that such returns were duly verified. If be satisfies tbe court of that fact, there should be a new trial. EyaN, G. J., took no part. A motion by tbe respondent for a rehearing was denied at tbe August term, 1877.