Auditor General v. Newman

Grant, J. (after stating the facts). The auditor general, in canceling these sales and refunding the money, acted under the authority of Gurd v. Auditor General, 122 Mich. 151 (80 N. W. 1005). If that decision had correctly stated the law, the action of the auditor general in canceling the sales to Mrs. Eldridge and refunding the money would have been valid. That decision was overruled in Cole v. Auditor General, 132 Mich. 262 (93 N. W. 890), in so far as the former decision sustained the [290] power of the auditor general to review and set aside proceedings prior to the decree. The law under which these sales were made to Mrs. Eldridge provided that the lien for the taxes, etc., should continue until payment thereof. A void sale does not discharge the lien. If the sale be void for any reason that does not affect the validity of the taxes, the lien remains, and can be afterwards foreclosed. Auditor General v. Patterson, 122 Mich. 39 (80 N. W. 884). Mrs. Eldridge was also entitled, under that case, to have the amount paid for the taxes of 1895 and 1896 refunded. 4 That the auditor general made a mistake, and canceled and refunded when the law did not authorize him to do so, does not destroy the lien, or operate as a payment of the taxes. Either the purchaser of the tax title still retains his title, although his deed and sale have been canceled and the money refunded, or the State still retains its lien for the tax, notwithstanding the action of the auditor general. But the auditor general, acting under the Gurd Case, which we held, in Cole v. Auditor General, justified him in taking such action, set many sales and deeds asidé in cases in which the proceedings prior to decree were void, and would have prevented a decree of sale if contested at the proper time. There is no provision of law for restoring the deeds and recovering the money so refunded. Newman’s purchase did not operate to discharge the former liens, or to estop the State to assert them. It follows that the lien of the State remains, and that it is the duty of the auditor general, by subsequent petition, to proceed to foreclose. The decree is reversed, and the case remanded for further proceedings. Moore, Carpenter, and Montgomery, JJ., con- ■ curred. Hooker, C. J., took no part in the decision.