Roberts v. Auditor General

Sharpe, J. The following description of land appeared on the tax roll of the city of Sandusky for the year 1917: “Unplatted land in city of Sandusky, one acre of land in square form in N. W. corner of N. W. quarter of section 4, T. 11 N., R. 14 E., subject to all highways across same.” There are streets on the north and west sides of this acre, one-half the width of each being taken therefrom. William Roberts, the plaintiff, had long owned this land and had paid the taxes on assessments substantially similar to that on the roll of 1917. On January 9, 1918, he made a written tender to the city treasurer of $440.67, and demanded a receipt for the [697] payment of the tax on the land included in said acre, exclusive of the streets, described by metes and bounds. The amount tendered was % of that assessed. • The treasurer accepted the money and gave receipt for an “undivided % of tax assessed against this description.” The remaining % interest was returned delinquent, included in the annual petition of the auditor general, decree granted therefor, advertised and sold, report on sale made and filed and decree enrolled on June 24, 1920. The petition herein was filed on November 19, 1920, praying that the sale be set aside. It is his claim that he tendered to the treasurer and paid the tax on all the land included in said acre which was owned by him. His claim for the relief sought is based on the following provisions of the tax law (1 Comp., Laws 1915, §§ 4049, 4067) : “* * * Any person owning an undivided share or other part or parcel of real property assessed in one description may pay on the part thus owned, by paying an amount having the same relation to the whole tax as the part on which payment is made has to the whole parcel. The person making such payment shall accurately describe the part or share on which he makes payment. * * * “* * * That no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation.” We may take judicial notice that unplatted lands in the corners of governmental subdivisions are frequently, if not usually, assessed without reference to the streets. The highways are never excluded in assessing such lands in townships. The tax roll indicates that the assessor and board of review when making the assessment took into consideration the fact that a part of the acre was used as streets. The description was in no way defective. Had! plaintiff desired it to conform to that in his tender, he should have appeared before the board of review and asked for its correction. The treasurer should not have given receipt as for [698] an undivided % interest. But the plaintiffs land was subject to the entire tax and in this proceeding in equity he cannot be relieved from payment of that part of it which remains unpaid. Spaulding v. O’Connor, 119 Mich. 45; Brooks v. Auditor General, 119 Mich. 329. We do not pass upon the question as to whether relief may be sought by petition after confirmation and enrollment as it was not raised in the court below or discussed by counsel. The decree is affirmed. Fellows, C. J., and Wiest, Clark, Bird, Moore, and Steere, JJ., concurred. The late Justice Stone took no part in this decision.