Wait v. McMillan

Moore, J. Defendant, a resident of British Columbia, was the original owner of the land in controversy. His land was sold for the taxes of 1890 and 1892, to the State. The complainant made application at the office of the auditor general to buy this land, and paid for it, June 3, 1897. He obtained his deed September 18, 1897. Later he obtained possession of the land, and filed a bill to quiet his title. The defendant answered the bill, and attacked the validity of the tax proceedings, assigning a number of reasons why they were void. The circuit judge filed a written opinion of his conclusions, and dismissed the bill of [96] complaint. According to bis findings, the reason why he dismissed the hill was because, under the provisions of Act No. 229, Pub. Acts 1897, the complainant was under the necessity of giving the owner six months’ notice before he could take possession of the lands, and, as he had not given the notice, he could not maintain this bill. When the decree was rendered by the learned judge, the case of Pierpont v. Osmun, 118 Mich. 472, had not been decided. The opinion in that case is contrary to the conclusion of the trial judge. His decree, however, should stand, for another reason. It appears by the record that the order for a hearing in the tax proceedings fixed the time of hearing for the 17th day of September, 1894, while the decree establishing the lien and the amount thereof, and directing a sale, was made on the 21st of September. As has already been stated, the defendant was not a resident of this State. The only service made upon him of this proceeding was the notice provided by the statute. He did not appear and file objections* and thereby waive any of the requirements of the statute which were essential to give the court jurisdiction to enter the decree. He was entitled to five days, upon a proper showing, in which to file his objections. The decree was taken before the five days elapsed. The case is controlled by Peninsular Savings Bank v. Ward, 118 Mich. 87, and Youngs v. Clark, 120 Mich. 528. The decree was prematurely taken, and therefore void as to those who did not appear, or otherwise waive the right to apply for further time. The decree is affirmed, but without costs in this court. The other Justices concurred.