Westbrook v. Miller

¶1The plaintiff brings trover to recover the -value of about 2,000,000 feet of pine saw-logs, worth over $20,000, which he claims defendants converted, the plaintiff having the title thereto.

¶2The lands from which the timber was taken were held by ■the State for the taxes of 1872, 1873, 1876, 1877, 1878,1879, ;and 1880, and John M. Hoffman, having purchased the State bid, procured a deed for these years from the State, February -9, 1883, for the sum of $56.46, under what is known as the graduation act of 1881, and the amendment thereto.1

¶3Hoffman afterwards deeded the lands to the plaintiff, Westbrook. These conveyances furnish the only claim of title relied on by the plaintiff to establish his ownership to the lands or logs in question, and his right to the possession of the same. The land was unimproved, not inclosed, and unoccupied, and the plaintiff never had any actual possession .of the land or logs in question.

¶4The defendants entered upon the lands during the winter -of 1883, and commenced cutt'ng and removing the timber therefrom, claiming to be the owners in fee through a deed of purchase from one John T. Phillips, for the consideration of $5,500.

¶5The land was located by Selden A. Jones on June 27, 1853, who conveyed to John T. Phillips, November 28, 1853. John T. Phillips deeded to Oscar F. White, December 11, 1853, taking a mortgage back; and Oscar E\ White, by cirnuit court commissioner, on foreclosure of this mortgage, .conveyed to John T. Phillips, May 8, 1856, Phillips conveying to defendants Miller and Lewis subsequently.

¶6This suit was commenced February 19, 1884, while defendants were on the lands cutting and removing the timber, and *131having such actual possession as was necessary for carrying on lumbering operations.

¶7At the time the suit was commenced, and the alleged conversion claimed in the declaration, there were outstanding tax titles held by one Juan C. De Meier, covering the years 1862,1861, 1866, 1867, 1868, and 1869. Juan O. De Meier conveyed to one Cain M. Cook, June 25, 1881, and Cook conveyed to defendants, June 28, 1881.

¶8De Meier purchased from the State, and had the deeds recorded several years prior to the commencement of this suit, and before the time that plaintiff obtained his tax titles. Thus, there were several outstanding tax titles in De Meier when this suit was commenced, and when plaintiff or his grantor obtained his tax deed.

¶9On the trial the plaintiff offered in evidence a conveyance by the Auditor General to John M. Hoffman, for the taxes of .1872 and 1873, 1876 to 1880, inclusive, dated February 9, 1883, and a conveyance from Hoffman to the plaintiff, dated November 11, 1883; also evidence showing the cutting and -carrying away of the timber to Bay City, where the logs were worth $12 per thousand at the time suit was commenced.

¶10The grounds relied upon by the defendants were—

1. The invalidity of the plaintiff’s title.

2. Ownership by the defendants under the original title.

3. The title outstanding in Juan C. De Meier for the years hereinbefore mentioned.

¶11The cause was tried in the Bay circuit, before Judge Green, with a jury, who, under the charge of the court, rendered a verdict for the defendants, and plaintiff brings error.

¶12The plaintiff, in order to recover against the defendants, had to show a valid title to the timber and logs in question. This he sought to do by relying upon his title to the land upon which the timber grew, and from which the logs were taken. The invalidity of taxes for the year 1872 was admitted by the plaintiff in his requests to charge, there being *132no sufficient warrant attached to the collector’s roll.1 The-certificate attached to the assessment roll for that year did not state that the supervisor assessed the land at its true cash value, and not what it would bring at a forced or auction sale. This omission was fatal, and invalidated any sale made-for the taxes of that year. Silsbee v. Stockle, 44 Mich. 565, 566; Dickison v. Reynolds, 48 Id. 161, 162; Sinclair v. Learned, 51 Id. 343.

¶13The testimony shows that, in case of the other tax sales’, under which the plaintiff claims title, the chairman of the-board of supervisors of Bay county did not, in either case, fill out and attach the proper certificate 'of equalization to the-State and county tax-roll, as required by How. Stat. § 1029, but the same course was pursued in each of these cases as was taken by the chairman of the board in the case of Maxwell v. Paine, 53 Mich. 32, and which it was held rendered any sale thereunder void.2

¶14' We think that case clearly governs this, upon the question of the effect of the absence of such certificate.

¶15Under the decisions of this Court, heretofore made, the plaintiff failed to show such title as would allow him to recover, and the circuit judge was right in so holding.

¶16The testimony of the defendants, undisputed and unimpeached, showed, further, that prima facie, at the- time the suit was commenced, the title to the property was outstanding in a third party, Mr. De Meier. This was entirely proper to be shown, and necessarily defeats the plaintiff in the case. Every tax sale, under our laws, is a sale of a complete title, and, if legal, when it matures takes precedence of all other-titles. Sinclair v. Learned, 51 Mich. 344.

¶17There is no occasion for discussing the other questions-raised in the argument of counsel, or upon the other assign*133■ments of error. The circuit judge was clearly right in all his rulings, and the judgment will be affirmed.