Owens v. Auditor General

Moore, J. In the matter of the petition of the auditor general of the State of Michigan, for and in behalf of the State, for the sale of certain lands for the taxes assessed thereon for the years 1887, 1888, 1889, 1890, 1891, 1892, and 1893, respectively; Peter Owens, petitioner. The following statement of facts is taken, in the main, from the brief of counsel for complainant: ‘ ‘ The complainant and petitioner, Peter Owens, is the owner of the original or government title, and he filed his bill of complaint for the purpose of having his title quieted from a certain cloud created by tax deeds. “The defendants, the two corporations, claim title to the land through what is known as ‘ State Tax Homestead Deeds.’ The defendant the Hecla Portland Cement & Coal Company, having purchased this land from the commissioner of the State land office, subsequently gave a trust mortgage upon this land, with a great many other descriptions of land, to the defendant the Detroit Trust Company in trust for the benefit of its creditors. The State tax homestead deeds were based upon certain alleged tax titles for the taxes of 1884 to 1893, inclusive. “ The complainant first commenced proceedings by filing a bill of complaint on March 14,1904, in which he asks, [685] among other things, that the sales of said land, and the decree upon which they were based may be set aside and held for naught, * * * and that the cloud against the title of his land may be removed, and that the defendants be enjoined from claiming any right, title, or interest to the land. “ To this bill of complaint, all defendants appeared in answer. As part of the tax titles upon which the State tax homestead deed is based were advertised, sold, and bid in to the State under the general tax laws of 1889 and 1893, which provide for proceeding in the courts of chancery, the solicitors for the complainants, in connection with and supplementary to the bill of complaint, filed on behalf of the complainant petitions in the original suits brought by the auditor general on behalf of the State for the sale of land for the taxes assessed thereon in the years 1887, 1888, 1889, 1890, 1891, 1892, and 1893. Each of' these petitions for their respective years asked, among other things, that the decree theretofore entered in the proceedings for each year may be set aside and held for naught. * * * To each of these petitions the defendants filed separate answers. * * * “ Upon the hearing, the proof showed that Peter Owens was the owner of the original dr government title, having purchased the same in 1884; that the land was delinquent for taxes for 1884 to 1893, inclusive; that in 1896 the auditor general and the land commissioner, acting under section 127, Act No. 206 of the Public Acts of 1893, made this land State tax homestead land, and upon the lstday of December, 1896, the auditor general of the State of Michigan executed State tax homestead deed to the State of Michigan for the taxes of the years 1884 to 1893, inclusive; said land having been bid in to the State at the tax sales in the years 1886, 1887, 1888, 1889, 1890,1891,1892, in May, 1893, in December, 1893,1894, 1895, for the taxes assessed thereon, in the years 1884, 1885, 1886, 1887, 1888, Í889, 1890, 1891, 1892, and 1893, as appears by the deed. “Upon the 20th day of February, 1903, Edwin J. Wildey, commissioner of the State land office, executed a deed to the Hecla Portland Cement •& Coal Company of the land in question. That afterward the Hecla Portland Cement ,& Coal Company executed mortgage to the Detroit Trust Company upon the 3d day of October, 1903.” The court below granted a decree in favor of the complainant. [686] A great many interesting questions are discussed in the able briefs which have been presented by counsel; but, in our view of the case, it will not be necessary to discuss them. The tax titles based upon the taxes of 1892 are said to be void for the following reasons, we quote from the briefs: “ (a) Tax titles for the taxes of 1892 were void because the figures in column 14, the amount decreed against the land, were not made up and filled out before the signing and entering of the decree; the amounts having been filled out by the county treasurer after the completion of the tax sale. Morgan v. Tweddle, 119 Mich. 350; First Baptist Church of Bay City v. Robert, 120 Mich. 704. “(b) They are also void because of the violation of the auditor general of section 61, Act No. 206, Pub. Acts 1893, which declared that the land heretofore bid off in the name of the State and thus held shall not be included in such petition. Connecticut Mut. Life-Ins. Co. v. Wood, 115 Mich. 444; Aztec Copper Co. v. Auditor General, 128 Mich. 615.” As to “a:” The cases cited by counsel under this head are cases of direct attack made very soon after the decrees were entered. It has been repeatedly held that a decree of sale for the taxes cannot be assailed by a collateral proceeding, as in this case by a bill in chancery. See First Baptist Church of Bay City v. Robert, 120 Mich. 704; Wilkin v. Keith, 121 Mich. 66, and the many cases there cited. Carpenter v. Auditor General, 144 Mich. 251. (b) Is the sale for the taxes of 1892 void because of section 61, Act. No. 206, Pub. Acts 1893 ? The language of the statute is not as stated in the quotation made above from the brief. It reads: “ Lands hereafter bid off in the name of the State and thus held, shall not be included in such petition.” We cannot do better than to quote from the brief of counsel for defendants: “Th^t certainly has no application to the petition for the sale on account of the tax of 1892, because when that petition was made, in the fall of 1894, this land had not [687] then been ‘ hereafter ’ bid off in the name of the State. All the bidding in the name of the State upon those lands had been at a prior date, before the amendment took effect. There was no such provision in the statute of 1891, ” In Connecticut Mut. Life-Ins. Co. v. Wood, supra, in the opinion by Chief Justice Grant, the following language was used: “It must be remembered that the act of 1893 does not exclude from the petition lands which had theretofore been bid in by the State, but only lands. which should thereafter be bid in and held.” Can the complainant obtain relief against this tax of 1892, through the agency of his petition, filed March 17, 1904, in a proceeding which resulted in a decree made more than 10 years before ? No excuse is made for the laches of petitioner in not seeking to set aside this decree earlier. As already stated, the complainant became the owner of this land in 1884. From that time until he commenced this proceeding, 20 years later, he paid no taxes thereon. The land was assessed for taxes every year thereafter, and returned delinquent until the land was deeded to the State in 1896 for the taxes of 1884 to 1893, inclusive, and the taxes for 1894, 1895, and 1896 were canceled by the auditor general. After said deeds to the State, the land was not subject to taxation, until after it was sold by the commissioner of the State land office, under section 131, Act No. 206, Pub. Acts 1893. Mr. Owens, of course, knew that his land was subject to taxation, and if the taxes assessed were not paid the land would be returned delinquent, and sold by the State for the purpose of foreclosing its lien. He was a resident of the city of Alpena, in close proximity to the land in question, but did nothing toward paying what was due from him to the State. He seeks by his petition, filed more than 10 years after the decree is taken, to have it set aside. What was said upon the question of laches in Bending v. Auditor General, 137 Mich. 500, is applicable here. The [688] laches in this case is more marked than in that case. See, also, Spaulding v. O’Connor, 119 Mich. 45; Cook v. Auditor General, 124 Mich. 430; Tromble v. Hoffman, 130 Mich. 676; Carpenter v. Auditor General, supra. We think it too late to entertain a petition to set aside a decree made 10 years before. Counsel contend that by reason of the provisions of Act No. 84, Pub. Acts 1903, all laches are excused, and the owner of the original title is given six months after said act took effect in which to attack the sales. We do not so interpret the provisions of that act, but think they were intended to fix a period limiting a time after which certain sales cannot be attacked. The decree is reversed, and one may be entered here, dismissing the bill of complaint and petitions, with costs of both courts. Grant, Blair, Montgomery, and Ostrander, JJ., concurred.