Weller v. Wheelock

Montgomery, J. This is an action in ejectment brought to recover the undivided six-sevenths of lot 17, in block B, of McFarlan & Co.’s Saginaw street addition to the city of Flint. A judgment was entered for defendants by direction of the circuit judge, and plaintiffs bring error. It appears not to have been disputed that the record title to the property in question from the United States stood in Sarah J. Pierson at the time of her death, on July 22, 1900, nor does it appear to. be disputed that the six-sevenths’ interest in the fee was conveyed by will to the present plaintiffs, subject to the life estate of Ephraim J. Pierson, the husband of Sarah J. Pierson. The defendants claimed title by virtue of a tax deed executed by the auditor general to William O’Connor, trustee, on May 25, 1903, for the taxes of 1899. On the 22d of August, 1900, Ephraim J. Pierson was appointed executor of the estate of Sarah J. Pierson. He died on the 23d of March, 1903, and was succeeded in his office of executor through successive appointments, first by Charles S. Brown, and later by Homer J. McBride. On the 4th of August, 1903, a notice was served upon Charles S. Brown, administrator de bonis non, signed by William O’Connor, trustee, and conforming, in all substantial respects, with the requirements of sections 3959, 3960, 1 Comp. Laws, as amended by Act No. 204, Pub. Acts 1899, and after the lapse of a period of six months, this suit was instituted. Two objections are made to the validity of this notice: — 700 — First, it is contended that by Act No. 236, Pub. Acts 1903, the requirements as to the form of notice were changed, and that the notice served in this case did not answer the requirements of the new statute; second, it is contended that, as the right to the undivided interest in this property had vested in plaintiffs prior to the date when notice could have been given to Mrs. Pierson, they are to be regarded as the grantees under the last-recorded deed in the regular chain of title to said land, within the meaning of the statute, and that service upon the administrator provided for by statute is only authorized when, at a time after notice is due, service might have been had upon the decedent. Sections 3959 and 3960 were amended by Act No. 236, Pub. Acts 1903, and the amendment given immediate effect, so that the same was in force at the time of the service of the notice in this case. This amendment required notice to the owner or owners “of any and all interests in the land herein described,” etc.; the words “any and all interests ” having been inserted by amendment. The legislature also changed the form of notice, so that the latter directed payment to the tax purchaser or to the register in chancery of the county in which the lands lie; the latter provision for payment, namely, that to the register in chancery, being introduced by amendment. This is the contention of the defendants — and the court below accepted this contention — that upon the purchase of the tax title from the State the right to serve this notice in accordance with the terms of the statute then in existence became a part of the contract between the State and the purchaser, and that the same was not subject to subsequent change or modification, as such modification would amount to the impairment of the obligation of contracts. The court seems to have based its rulings on the case of Eldridge v. Richmond, 120 Mich. 586, and Griffin v. Jackson, 145 Mich. 23. In the case of Fldridge v. Richmond the purchase of the land was made from the State before there was any law in force requiring any notice by — 701 — the tax purchaser or giving any time for redemption by him. It was held that the right vested in the law could not be divested by a subsequent provision for period of redemption. The case is obviously distinguishable from the present. Griffin v. Jackson, supra, was determined on other grounds, it being held that the deed was void on its face, but there is language employed in the opinion of Mr. Justice Hooker which gives support to the holding of the circuit judge. It was not concurred in by the full bench, and was not necessary to a decision of the case, and it therefore has not the weight of authority. It is not necessary in this case to determine whether, in so far as the. amendment of 1903 attempted to confer a right upon another class, namely, purchasers under tax titles, it was ineffective, in that it impaired the obligation of contracts. That question is not involved in this case. What we are here dealing with is the form of notice, and the requirement that it shall in form be directed to the owner or owners of any and all interests described and that it shall give notice of the right to make payment to the register in chancery of the county in which the lands lie. We are constrained to hold that the circuit judge was in error in reaching the conclusion which he did. The amendment of 1903 did not shorten the period of redemption. It divested the tax purchaser of ho substantial right by simply changing the form of notice, and providing that the payment for redemption might be made to the register in chancery. The amendment affected the remedy of the tax purchaser only, and not any substantial property right. The case in this respect is not distinguishable from that of Curtis v. Whitney, 13 Wall. (U. S.) 68. In that case the plaintiff became purchaser at a public sale for delinquent taxes of a tract of land, and received the proper certificate authorizing him to a deed at the end of three years if the land was not redeemed. ' After the sale, and something over a year before the expiration of the three years, the legislature passed an act providing that, where any person was found in the actual occupancy of the — 702 — land, the deed should not issue, unless a written notice had been served on the owner of the land or on the occupant by the holder of the tax certificate at least three months prior thereto. The plaintiff succeeded in obtaining her deed without giving this notice, and when she brought suit to quiet title, it was held, by the supreme court of Wisconsin, that her deed was void for want of notice. The case was taken to the Supreme Court of the United States, and the question distinctly presented as to whether the statute of Wisconsin requiring such notice impaired the obligation of the contract created by the issue of the certificate of sale. The court say: “The right of the plaintiff to receive her deed is not taken away, nor the time when she would be entitled to it postponed. While she had the right to receive either her money or her deed at the end of three years, the owner of the land had a right to pay the money, and thus prevent a conveyance. These were the coincident rights of the parties, growing out of the contract by which the land was sold for taxes. The legislature, by way of giving efficacy to the right of redemption, passed a law which, was just, easy to be complied with, and necessary to secure, in many cases, the exercise of this right. * * * The authority of the legislature to frame rules by which the right of redemption may be rendered effectual cannot be questioned, and among the most appropriate and least burdensome of these is the notice required by statute.” If it is competent for the legislature to require a notice where none was required before, it would seem to be unreasonable to hold that the form of the notice and the conditions of payment required might not be changed by the amendment of the statute. As was said in Coulter v. Stafford, 56 Fed. 564, 6 C. C. A. 18: “ Under such acts no legal remedy of the holder of the tax certificate is taken away. He is simply required to observe a formality imposed by the statute. By the observance of this formality, all his rights are preserved to-him.” See, also, Gage v. Stewart, 127 Ill. 207; Oullahan v. — 703 — Sweeney, 79 Cal. 537; Herrick v. Niesz, 16 Wash. 74; State v. Krahmer, 105 Minn. 422. It is not very-material how we define the title which the purchaser from the State acquires. One thing is obvious, and that is that his title is subject to redemption for a period of six months. It is not then a title which is absolute as against all the world, and no.enlargement of the period of redemption is made by the act of 1903. That act simply fixes the remedy. It puts upon the tax purchaser the burden of serving notice and of permitting a payment to be made either to himself or to the register in chancery. Such legislation is within the class of remedial legislation referred to and discussed in the various cases cited above., It is suggested that this statute should not be construed as retrospective, but that it should only be held to have reference to titles acquired from the State after the statute took effect. The statute contains no such limitation in terms. It is unquestionably broad enough to include, and we think it manifestly was intended to include, all notices required to be given after the statute took effect. It is not in the nature of a new provision of law, but is a substitute for the pre-existing section 140. It prescribed the only notice which.from the time of its enactment is required, and it would be difficult to infer a legislative intent that it was not to have effect at once, and it would appear to be ingrafting upon the statute an exception which is not' expressed for us to hold that the legislative purpose was to make this applicable only to such lands the title to which should be thereafter acquired from the State. The general rule is: “A statute which is amended is thereafter, and as to all acts subsequently done, to be construed as if the amendments had always been there, and the amendment itself so thoroughly becomes a part of the original statute that it must be construed in view of the original statute as it stands after the amendments are introduced and the matters superseded by the amendments eliminated. ” Endlich on Interpretation of Statutes, § 294. — 704 — The rule is recognized that a statute should have prospective operation only unless its terms show clearly a legislative intention that it should operate retrospectively. Cooley on Constitutional Limitations (7th Ed.), p. 529. And although there is no doubt of the right of the legislature to pass statutes which[reach back to, and change or modify the effect of, prior transactions, provided retrospective laws are not forbidden in terms by the State Constitution, and where no other objection exists to them than their retrospective character, a construction of a statute which has the effect to impair rights existing under previous statutes will be avoided if consistent with the express terms of the statutes. Id. See Angell v. West Bay City, 117 Mich. 688; Broffee v. City of Grand Rapids, 127 Mich. 89; Todd v. Election Com’rs, 104 Mich. 474 (29 L. R. A. 330). But by retrospective or retroactive laws, as the terms are used in this connection, is meant the law which takes away and impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed, and the Michigan cases referred to plainly fell within this definition. In Todd v. Election Com’rs, the statute of 1895 (Act No. 17, Pub. Acts 1895), which required an election by the candidate nominated by two political parties as to which party ticket he would request his name to appear upon, was held not to apply to an election at which he had no opportunity to exercise this choice because the time allowed him by the statute had elapsed before the law took effect. Had this law been held to apply to the election in question, it would clearly have affected the status of the candidate as fixed by pre-existing laws, and to have cut off the relator from the exercise of the right which it was plainly the purpose of the statute to confer upon him. So in the case of Angell v. West Bay City, supra, a similar question was raised. There a cause of action accrued to the plaintiff for an injury sustained by — 705 — Mm on the 15th of May, 1897. By an amendment of the charter of West Bay City a provision was for the first time introduced requiring that a person suffering an injury by reason of a defective street, sidewalk, etc., should serve a notice upon the clerk within 60 days after such injury shall have occurred. It was the plain purpose of the statute, of course, to give to the injured party 60 days after his injury occurred within which to serve this notice. It was held that the statute should not be applied to a case where the injury had occurred before the statute took effect, for the reason that he would not be allowed the time which the statute itself contemplated within which to serve the notice. While it was recognized that under our Constitution the case not having been one - dependent upon contract, a retrospective law might be valid, yet it was held that such operation should not be given unless such intention of the legislature clearly appeared. The case of Broffee v. City of Grand Rapids, supra, followed this case, and it was said that, if the contention of the city was to prevail, persons having claims against the city would not be upon an equal footing, and a construction which would mark such a difference was of course not adopted. None of these cases rule the present. As already pointed out in the present case, by the amendment of the statute the only provision now in force requiring notice and fixing the form is that enacted by the law of '1903. It is contended that the plaintiffs are not in a position to maintain this suit for the reason that the inheritance tax to the State has not been paid. Reliance is had upon Act No. 195, Pub. Acts 1903, which reads as follows (section 3): “Butno executor, administrator or trustee of an estate, in settlement of which a tax is due under the provisions of this act, shall be discharged and the estate or trust closed by a decree of the court, unless there shall be pro — 706 — duced a receipt signed by the county treasurer and sealed and countersigned by the auditor general, or a copy thereof, certified by the county treasurer, or unless payment of the tax has been deferred as prescribed by section seven of this act.” Section 5 provides: “In such case the administrator, executor, trustee or other person having in charge or in trust any legacy or property for distribution subject to such tax, shall deduct the tax therefrom; and within thirty days thereafter shall pay over the same to the county treasurer as herein provided. If such legacy or property be not in money, he shall collect the tax thereon as determined by the judge of probate from the person entitled thereto, unless such tax has been paid to the county treasurer. He shall not deliver or be compelled to deliver any specific legacy or property subject to tax under this act to any person until the tax assessed thereon has been paid to him or to the county treasurer.” If the State were here raising this question, there might be more doubt about it. But we think counsel have mistaken the effect of this legislation upon the title of the plaintiffs. No delivery of possession of the real estate to the devisees was necessary. Under the will these plaintiffs took title subject to the right of the executor to take possession of the same for the purposes of administration. The legatee might have had and defended possession in himself from the time the will was probated. Rough v. Womer, 76 Mich. 375. See, also, Howard v. Patrick, 38 Mich. 795. While it may be within the power of the executor to cause a sale of this land to be made for the purpose of paying the tax of the State, and while it may be within the power of the State to enforce this payment by similar action, this is a matter of no concern to the defendants, as subject to these rights the plaintiffs have shown a right to possession. The other questions become unimportant. The judgment is reversed, and a new trial ordered. Blair, Moore, and McAlvay, JJ., concurred with Montgomery, J.