Edwards v. Taliafero

Marston, J: It is unnecessary to determine what the effect of the stipulation in this case would have been had no other, showing been made on the part of the plaintiff in error, who was plaintiff in the court below. He deemed it necessary to introduce the petition and proceedings in the probate court, authorizing the property to be mortgaged by the guardian of defendant Taliafero, under which plaintiff claimed title. Those proceedings affirmatively showed that the statute had not been complied with. Sec. 4626, 2 Comp. Laws, provides that the order of the probate court shall specify the amount to be secured by such mortgage, the rate of interest to be paid, and the length of time for which such mortgage shall be given. The petition was simply for leave to raise five hundred dollars, — no rate of interest or time when to become due was mentioned either in the petition or order, nor was there any report or order of confirmation afterwards, so that the probate court did not in any manner or at any time pass upon these questions. Hnder such circumstances we are of opinion that the plaintiff acquired no title under the mortgage given by the guardian, and that the ruling of the court below upon this question was correct. Plaintiff in error also claimed under a tax lease, executed by the comptroller of the city of Detroit upon a sale of the land in question for delinquent taxes for the year 1870. It appears that there was an excess of over twelve thousand dollars assessed and spread upon the rolls of said [16] city for the year 1870, and that a portion of the same entered into the amount of taxes for which this property was sold. This rendered the sale invalid. We do not deem it necessary to consider the other questions raised. The judgment must be affirmed, with costs, and the record will be remanded to the court below for further proceedings under the statute. The other Justices concurred.