Wayne County MI Archives Court.....Rowland, Vs Doty 1837
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 6:10 am

Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY.

Thomas Rowland v. Ellis Doty and others.

Equity jurisdiction: Remedy at law. In general where a bill prays relief which 
cannot be had at law, and to which the complainant is entitled, it is 
sufficient to give the court of chancery jurisdiction. (a.)

Quieting title to land. Under the code of 1833 the court of chancery has 
jurisdiction to quiet the title of the legal owner of the land in possession 
of the same, as against any other person setting up a claim thereto. (b.)

Tax title: Tax paid. A sale of land for taxes is wholly unwarranted if the tax 
has been paid, and the deed given thereon will convey no title to the 
purchaser. (c.)

Tax title: Evidence of payment of tax. The collector's return that the tax has 
not been paid is such evidence only of non-payment as will justify the 
treasurer in selling; and under the code of 1827 the treasurer's deed was 
evidence only that the sale made by him was regular, according to the 
provisions of the statute. The land owner might go behind both, and show that 
in fact the tax was paid before the return was made. (d.)

The bill in this case set forth that Thomas Rowland was, in the year 1822, 
owner in fee simple of lot number 59, in section number 8, in the city of 
Detroit; that he continued the owner and possessor of said lot up to the time 
of the filing of the bill, and made permanent improvements on the same to the 
value of $1,000; that all the township and county taxes assessed on said lot 
had been paid by him from the year 1822, up to the time of filing the bill; 
that a few days before the filing of the bill, he was informed for the first 
time that Peter Desnoyer, the former treasurer of the county of Wayne, 
pretended to sell said lot on the third day of October, 1831, for the taxes 
pretended to be due thereon for the year 1828, to one Rufus Wilson; that in 
the year 1833, David French (the successor to Desnoyer in the office of 
treasurer of said county), to carry into effect such sale, executed a deed of 
said lot to said Wilson, and acknowledged the same according to law; that 
Wilson conveyed to Ellis Doty, and Doty had applied to Theodore Williams, 
register in the city of Detroit, to have the deed from French to Wilson 
recorded.

The bill further stated, that Rowland, as evidence that he had paid the taxes 
on said lot for the year 1828, held in his possession the receipt of Abraham 
C. Caniff, collector for the township and city of Detroit, in full thereof; 
that Rowland, being in possession of said lot, was unable to divest said Doty 
of his pretended title to the same by an action of ejectment, or any other 
process of law whatever, and he therefore prayed that the deed from French to 
Wilson might be decreed to be given up to be canceled, as also all pretended 
conveyances from Wilson to Doty, and that said Wilson and Doty assign all 
their supposed right to said lot to Rowland; and also prayed for an injunction 
to restrain Wilson and Doty from incumbering the title to said lot, and to 
restrain Williams from recording said deed.

The bill was taken as confessed as against all the defendants except Wilson, 
who answered and disclaimed, and Doty, who demurred. A motion was also made to 
dissolve the injunction for want of equity.

A. D. Frazer, in support of the demurrer and motion to dissolve.

It is urged by the defendant that the injunction in this case be dissolved for 
want of equity in the bill, inasmuch as the complainant has full and adequate 
remedy at law, and no ground is suggested in the bill to give this court 
jurisdiction.

The legality or validity of the treasurer's deed is the question necessarily 
raised in this case. It is, therefore, properly examinable at law. Whether the 
requirements of the act to provide for the assessment and collection of taxes 
have been complied with, and how far it is necessary for the defendant to show 
compliance, are questions depending upon the statute (See Laws of 1827, page 
377), and to be adjudicated in an action of ejectment.

Where a cause depends simply on the solution of a legal question, the proper 
forum for the determination of that question is a court of law; nor will this 
court interfere in a matter where relief can be had either by quo warranto or 
mandamus. (Attorney-General v. Utica Ins. Co., 2 Johns. Ch., 376; 20 Ves., 199.

W. Woodbridge, contra.

The demurrer concedes all the facts stated, consequently that the proprietor 
was a resident proprietor, and that the property was assessed as the property 
of a non-resident, as well as the irregularity charged.

The mode of collecting a tax from a non-resident is variant from that 
prescribed for a resident. In the latter case the collector must proceed by 
distress upon the personal property; in the former case the tax can only be 
enforced by the sale of the land.

It is legally impossible that the land of a resident proprietor should be 
sold, and thus lost, if there were personal property upon which distress might 
be made; and the sworn return of the collector is the only evidence there 
could be that there was no personal property. Thus bringing this case almost 
within the very words of the case of Cox v. Grant, 1 Yeates, 165, and also of 
Stead v. Course, 4 Cranch, 413, 414.

In order to give effect to a collector's deed, every minute particular of the 
statute must have been shown to have been complied with. (1 Yeates, 300; 
Chip., 81; 4 Munf., 434.)

A collector has no general authority to sell lands at his discretion; but a 
special naked power to sell in certain specified events; and the prerequisites 
must precede the deed. The validity of the deed then finally depends upon 
matter in pais, and this matter must be shown. (Williams v. Payton, 4 Wheat, 
79, 80.

If the lots are not assessed in the name of the true owner, for example, the 
sale is void. (8 Wheat, 683, 684; 1 Munf, 423.) The lots must be definitely 
and properly described (4 Peters, 362, 363, 364), or the sale is void. (Vide 3 
Ohio Rep., 233, 234) In the case of Thompson v. Gardner, 10 Johns., 405, the 
court say: "It would be an alarming doctrine to say that the collector might 
sue immediately every person upon his assessment roll. It would be far more 
alarming if he could sell all a man's farm without suit, at his discretion, 
and without a regular assessment, advertisement, etc.

"The contrary is the law; even the excess of five cents in the whole amount of 
a tax list vitiates the whole proceedings, and the collector is a trespasser. 
(2 Greenl., 375.) For if the strict rule of the law be overleaped, there is no 
limit."

The Virginia statute provides that if the tax on land remains unpaid three 
years, the title thereof shall vest in the State. By a separate provision the 
collector is required to distrain, if there be personal property, and he is 
required to return to the county court a report, sworn to, of his proceedings; 
yet a sale by the State is utterly void unless the officer or purchaser prove 
fully all the proceedings—distress, advertisement, assessment, description, 
ownership and sale; otherwise, says Judge Tucker, it would be against the 
principle of Magna Charta. (2 Hen. and Munf., 328.)

Not only is a literal and exact compliance with the statutory provisions 
requisite, but the statute itself receives a very strict construction. (9 
Cranch, 67; Parker v. Rule, 8 Wheat, 682; 5 Ohio, 369; 4 Munf., 431.)

The claim of the defendants being thus bad at law, the complainant has a full 
right to come into chancery to have the invalid deed canceled, and the doubts 
thrown upon his title removed and that title quieted—things which a law court 
cannot do.

This case is not distinguishable from that of Yancey v. Hopkins, 1 Munf., 4l9, 
426, 428. The assessment was in that case found to be irregular, and a 
canceling of the collector's deed, and also a reconveyance by release, were 
decreed. Nor can this case be distinguished from the case of the Corporation 
of Washington v. Pratt, 8 Wheat, 682. There had in that case been an irregular 
assessment, and the city lots had been actually sold for taxes. Pratt brought 
his bill against the corporation, and averred the irregularity of the 
assessment and proceedings, and prayed an injunction. The sale was declared 
void, and the city of Washington perpetually enjoined against issuing a deed 
to the purchaser.

This case is strikingly similar in its features to the case of Burnett v. 
Cincinnati, 3 Ohio, 86. In that case, likewise, there was an irregular 
assessment, and the tax not being paid, the collector was about proceeding to 
sell for the tax, when the complainant obtained an injunction. The decree of 
the court was a perpetual injunction against the threatened sale.

In all these three leading cases the point of jurisdiction was either made, 
debated and overruled, or else made and (as in 8 Wheat, 682) given up by 
counsel. (See also 5 Ohio, 679; 2 Paige, 436.)

The Chancellor. The first question that arises in this case is, as to the 
jurisdiction of this court.

As a general rule, where the bill prays relief to which the complainant is 
entitled, and which cannot be had at law, it is sufficient to give this court 
jurisdiction of the cause.

The bill in this case, after stating that the complainant had paid the tax for 
which the lot was sold, and being in possession, was unable to divest Doty of 
his pretended title to the lot by action of ejectment, or any other process at 
law whatever, prays that the deed from French to Wilson may be delivered up to 
be canceled, as also the conveyance from Wilson to Doty. It also prays that 
Wilson and Doty may be compelled to assign their claim to the complainant, and 
for an injunction to restrain them from incumbering the title to the lot, and 
to restrain Williams from recording the deed from French to Wilson.

Is it competent for this court to afford any part of the relief prayed? Most 
surely it is.

The jurisdiction of this court (exclusive of any statutory provision upon the 
subject) to set aside deeds and other legal instruments which are a cloud upon 
the title to real estate, and to order them to be delivered up to be canceled, 
is fully established. (Petit v. Shepard, 5 Paige, 493; Hamilton v. Cummings, 1 
Johns. Ch., 517; Apthorp v. Comstock, 2 Paige, 482; Grover v. Hugell, 3 Russ. 
Ch., 432; Ward v. Ward, 2 Hayw., 226; Leigh v. Everharts Ex'rs, 4 Monr., 380; 
Hamkshaw v. Parkins, 2 Swanst., 546; 1 Munf., 419;, Burnett v. Corporation of 
Cincinnati, 3 Ohio, 87; Mitford's Pl., 87; and there can be no question that 
there is sufficient stated in the bill to bring the case within the 
jurisdiction of this court.

But the act to prescribe the mode of proceeding in chancery of 1833 (Laws of 
Michigan, 358, sec. 29) provides that "any person having the possession and 
legal title to land may institute a suit against any other person or persons 
setting up a claim thereto; and if the claimant shall be able to substantiate 
his title to such land, the defendant shall be decreed to release to the 
complainant all claim thereto, and to pay the costs," etc., and the bill in 
this case is framed to come within the provisions of this section.

The facts set forth in the bill are admitted by the demurrer.

The question then is, does the treasurer's deed to Wilson divest Rowland of 
his title, and is Rowland precluded by that deed from showing that the tax had 
been paid for which the lot was sold?

By the 13th section of the "act to provide for the assessment and collection 
of township and county taxes (Laws of 1827, page 370) the tax is declared to 
be a lien on the land, and if such tax is not paid within a certain time, the 
treasurer is authorized to sell. The right to sell is, therefore, founded on 
the fact of the non-payment of the tax. If the tax be paid before the sale, 
that lien is discharged, and the right to sell no longer exists.

But it is said the treasurer's deed is conclusive upon this point. The 14th 
section of the act provides, "that the Treasurer shall, at the expiration of 
the said two years, execute to the purchaser, his heirs or assigns, a 
conveyance of the lands so sold, which conveyance shall vest in the person or 
persons to whom it shall be given an absolute estate in fee simple, subject to 
all the claims which the Territory of Michigan shall have thereon, and the 
said conveyance shall be conclusive evidence that the sale was regular 
according to the provisions of this act."

The conveyance from the treasurer vests "an absolute estate in fee simple" 
only where the proceedings throughout have been regular. The right to sell, 
being founded solely on the non-payment of the tax, does not and cannot exist 
whenever the tax has been paid. A sale, therefore, when no tax is in fact due, 
is unauthorized, and the treasurer's deed on such unauthorized sale conveys no 
estate or title whatever.

The return by the collector that the tax has not been paid is such evidence of 
non-payment only as to justify the treasurer in selling; and his conveyance on 
such sale is not "conclusive evidence" that all the prerequisites have been 
complied with, but is only conclusive evidence that the sale by him was 
regular, according to the provisions of the act.

And this was the construction given to the New York statute (which was 
substantially the same as ours) in the case of Jackson v. Morris, 18 Johns., 
441.

Could the legislature have intended that a party who had performed all his 
duties to the public, should be deprived of his property in this way? Was it 
not intended to operate upon those who should not pay their taxes, and not 
upon those who have, and thus have performed all their obligations? The 
obligation is reciprocal; if the citizen performs his duties to the government 
the government should perform its duties to him. Among the first of these is 
protection in his property; it should not be taken from him by the government 
or its agents without any fault or omission of duty on his part.

It is provided by the statute of Ohio, that "the deed made by the county 
auditor, as hereinbefore specified, shall be received in all courts as prima 
facie evidence of a good and valid title in the purchaser," etc.

In the case of the Lessees of Carlisle v. Longworth, 5 Ohio, 374, the supreme 
court say: "The legislature do not say a deed made by the county 
auditor 'shall be received as prima facie evidence of a good and valid title,' 
but the deed, 'as hereinbefore specified;' in other words, the deed made by 
the auditor in pursuance of this act. This is the manifest intention. Unless 
it is made in pursuance of the act, it is made without authority, and is void; 
but if made in pursuance of the act, it is prima facie evidence of title." And 
in this case it was held that before the auditor's deed could be received in 
evidence, it must be shown that he had authority to make it.

In the case of Stead's Ex'rs v. Course, 4 Cranch, 403, it was decided that it 
was incumbent on the vendee to prove the authority to sell.

Chief Justice Marshall, in delivering the opinion of the court in that case, 
says: "It would be going too far to say that a collector selling land with or 
without authority, could by his conveyance transfer the title of the rightful 
proprietor."

In Rule's Lessees v. Parker, 1 Cooke, 365, it was held that the sale of lands 
for the payment of taxes being a summary and extraordinary proceeding, the 
party claiming title under such proceeding must show that all the requisites 
that the law had prescribed to guard against frauds and imposition have been 
complied with.

And in the case of Williams v. Peyton's Lessees, 4 Wheat, 77, the court say, 
that where there is a naked power not coupled with an interest, every 
prerequisite to the exercise of that power should precede it; and that where 
lands are sold for the non-payment of taxes, the marshal's deed is not even 
prima facie evidence that the prerequisites of the law have been complied 
with; but the party claiming under it must show positively that they have been 
complied with.

These cases show what the general rule is upon this subject.

It is not necessary in this case to decide whether it is incumbent on the 
party claiming title under the treasurer's deed to show affirmatively the 
regularity of the proceedings, and that all the prerequisites to the sale have 
been complied with.

The complainant alleges in his bill that the tax for which the lot was sold 
had been paid long before the sale, and it would be a monstrous doctrine for 
this court to hold that he is precluded by the treasurer's deed, and cannot go 
behind it to show that fact.

The demurrer must be overruled, and the motion to dissolve the injunction 
denied.

-------------------
(a.)—See note (a), p. 1, ante.

(b.)—This statute was afterwards amended so as to entitle the owner of the 
equitable title to file a bill to quiet title. See Stockton v. Williams, Wal. 
Ch., 120; same case on appeal, 1 Doug., 546; Blackwood v. Van Vleet, 11 Mich., 
252; Hunton v. Piatt, 11 Mich., 264; Fitzhugh v. Barnard, 12 Mich., 104; 
Blanchard v. Tyler, 12 Mich., 339; Moran v. Palmer, 13 Mich., 367; Tabor v. 
Cook, 15 Mich., 322; Hall v. Kellogg, 16 Mich., 135; Woods v. Monroe, 17 
Mich., 238; Raynor v. Lee, 20 Mich., 384.

(c.)—Followed in Johnstone v. Scott, 11 Mich., 232; Rayner v. Lee, 20 Mich., 
384. 

(d.)—The law was afterwards changed so as to make the tax deed prima facie 
evidence of the regularity of all the proceedings, and of title in the 
grantee. See Sibley v. Smith, 2 Mich., 486; Amberg v. Rogers, 9 Mich., 332; 
Groesbeck v. Seeley, 13 Mich., 329; Wright v. Dunham, 13 Mich., 414. As to 
proof of irregularities, see Lacy v. Davis, 4 Mich., 140; Wright v. Dunham, 13 
Mich., 414; Case v. Dean, 16 Mich., 12.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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