Rousseau v. Riihiniemi

Ostrander, J. (after stating the facts). The court properly overruled defendant’s first contention. The payment was made at the place designated in the notice, and the form of the notice was the form required by the statute in force when the notice was given. The form of the notice which the statute required to be given by the tax title owner when he acquired the title was different from the one required by the statute in force when the notice was given. But the tax title owner had no vested right to have the money paid to him rather than to the register in chancery, and no additional duty was put upon him by the form, or the terms, of the notice required by the amended law. See Weller v. Wheelock, 155 Mich. 698 (118 N. W. 609); Dolph v. Norton, 158 Mich. 417 (123 N. W. 13). Compare, Curry v. Backus, 156 Mich. 342 (120 N. W. 796). If a sufficient sum of money was deposited by the owner of the original title with the register in chancery within the time limited by the statute, the tax title immediately became ineffective. This is so whether the tax title owner did, or did not, give a proper notice, or whether he gave any notice. — 658 — Whether the tax title owner gave a proper notice becomes important only in cases where the owner of the original title has not deposited sufficient money, in sufficient time; the right being available until the proper notice is given. The deposit which was made in fhis case was made in time. It becomes important therefore to consider the contention that the proper amount was not.deposited. It will be remembered that when the deposit was made publication of the notice had not been completed. Section 140 of the tax law, as amended by Act No. 142, Pub. Acts 1905, provides for the giving of a notice by the tax title owner to certain persons, and, among other things, that, if the sheriff of the county where the lands are located shall return that after careful inquiry he' is unable to ascertain the whereabouts or post office address of the grantee named in the last recorded deed (in this case, Chap-ton), then the notice shall be published once a week for four successive weeks in a newspaper, and due proof of publication by the affidavit of the printer or publisher of the paper shall be filed with the county clerk and shall be in lieu of personal service.- The statute, and the form of notice therein given, demands payment, by the original title owner, of “all sums paid upon such purchase,” i. e., the purchase of the tax title, “together with one hundred per cent, additional thereto, and the fees of the sheriff for the service or cost of publication of this notice, to be computed as upon personal service of a declaration as commencement of suit, and the further sum of five dollars for each description without other additional cost or charges.” The cost of the particular description, the east half of west half of the section, was $140.75. This sum doubled is $281.50. Adding $5 for one description of land makes the total $286.50. If the sum deposited was $287.56, as the testimony of the clerk — 659 — and the record entry on his book tend to prove, it still was not equal to the sum required to be paid if the fees of the sheriff as stated in his return, was a proper charge; the proper sum, in such case, being $287.60. If, the publication of notice having been begun, the fee of the printer,, or some of it, should have been paid, then the discrepancy is, of course, still greater. The fact that a sufficient sum was not deposited is not controlling if it is true, as the learned trial judge held, that the court had power to permit the complainant to pay the balance after this suit was begun. This court has held, in substance and effect, that upon the regular sale of lands for taxes, and the lapse of time to redeem from the sale the interest of the owner is lost, the State acquiring an absolute title to the land; that in disposing of the interest thus acquired the State may sell, and has in fact provided for selling, upon condition that the purchaser shall give a notice to certain persons who before the sale to the State possessed, actually or apparently, an interest in the land. If the persons so notified, or some of them, do not then reedem the land — acquire the interest of the tax title owner — that interest becomes complete. Since in all disputes concerning the observance of the condition, whether by the tax title owner or the owner of the original title, the title to real estate is involved, all parties in interest have been held to a strict compliance with the statute provisions. Clothier v. Miller, 173 Mich. 530 (139 N. W. 253); Holmes v. Soule, 180 Mich. 526 (147 N. W. 621); Huron Land Co. v. Manufacturing Co., 183 Mich. 45 (148 N. W. 753); Closser v. McBride, 182 Mich. 594 (148 N. W. 756). Usually, as is true in the case before us, equitable jurisdiction is invoked and is assumed because, only because, complainant has complied with the statute, thereby acquiring rights which the court may compel defendant to respect. The statute rights of — 660 — the parties can be neither enlarged nor limited by the court. The trial court was in error in holding that complainant might pay, after suit was begun, a sum which he should have paid to perfect the right asserted in the suit. This brings, me to the consideration of some propositions presented by complainant, who claims that sufficient money was, in fact, deposited with the register in chancery. He says, first, that the sheriff’s fee of $1.10, charged by him for the effort which showed inability to make personal service of the notice, is not a lawful fee and not one which he was required by the statute to pay. The argument made is that there is no provision of law for sheriff’s fees if he fails to serve a notice, or a subpoena, or other process of a court. He says, further, that there was no substituted service of notice — and therefore no statute notice was served — until August 12, 1909, when proof of publication of the notice was filed in the office of the register in chancery. Six days before this he made his deposit. A third proposition is that, having put his deed upon record June 15, 1909, before any one had been served with notice, he became entitled to a notice. A fourth proposition is that the attempted substituted service of notice is of no effect because of the length of time which elapsed between the return of the sheriff and the publication of the notice. Determination of the soundness of these propositions involves construction of the statute — an effort to ascertain the legislative purpose and intention. I have heretofore quoted the statute. It is ambiguous. The redemptioner must pay, or deposit, the “fees of the sheriff for the service * * * to be computed as upon personal service of a declaration as commencement of suit,” “or cost of publication of this notice.” It is not reasonable to assume that the cost — 661 — of publication of the notice and the fees of the sheriff are both to be computed as upon personal service of a declaration. The true meaning seems to be as indicated, namely, if there has been personal service of the notice the fees of the sheriff must be paid, computed as upon personal service of a declaration, and if no personal service is made, but the notice is published, the cost of publication must be paid; in either event, “without other additional cost or charges.” It is made evident by the facts before us that while the attempt is being made to serve a notice, personally, or by publication, the owner of the original title may determine to redeem by depositing money with the register in chancery. In such a case must the owner of the original title, before making his deposit, ascertain, at his peril, whether the tax title owner has incurred expense in an effort to serve the notice? I am of opinion, reading all of the pertinent provisions of the law together, that he is not under this obligation. By section 141 of the tax law, as it stood in 1909, the complainant was entitled to reconveyance if at any time before such notice was given he paid to the register in chancery on th'e certificate of the auditor general all sums paid as a condition of the purchase of the tax title, together with 100 per cent, additional thereto, and the further sum of five dollars for each description. “By such payment the tax title * * * shall become void and of no effect against the lands so redeemed.” This and other language employed leads me to the conclusion stated. There is no provision, or rule, established by the tax law or otherwise, for computing fees of a sheriff for attempting to make personal service of a declaration as commencement of suit. There is no method pointed out for determining the cost of publishing a notice, once or twice, or less than the required number of times. — 662 — And, in any event, the cost may be matter of private contract. Service of the notice may be made in two ways, personally, and, in certain cases, by publication. Until it is made, and in this case neither personal nor substituted service had been made, the complainant had the right to pay, as he did, the amount which he paid, relying, as he did, upon the certificate of the auditor general. This is the reasonable meaning of the statute. Any other would introduce confusion and uncertainty into a matter in which certainty is of the greatest importance. Manifestly, the person entitled to and desiring to secure the reconveyance knows whether he has been personally served with the notice, and must take notice of any return on file with the register which properly signifies that substituted service has been made. It is true that the return of the sheriff of inability to find the landowner may be contradicted (Winters v. Cook, 140 Mich. 483 [103 N. W. 869]) ; but this means only that the duty of good-faith effort is imposed upon the one required to give the' notice. So far as is possible, the rights of the parties ought to be determinable and determined by the record, and this I think was the purpose of the legislature. It follows that complainant made a sufficient deposit of money, a conclusion which makes discussion of other propositions unnecessary and requires that the decree should be affirmed. Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, MOORE, and SteÉre, JJ., concurred.