Hart v. Henderson

Henderson, as it appears from the record, brought ejectment against Hart for a lot of land in the City of Lansing, claiming to recover under a tax sale made for delinquent taxes of 1863.

The taxes for which this sale was made amounted to $22.19, of which three items,- amounting to $7.57, were conceded by the parties on the trial to have been illegally assessed, and the Circuit Judge so found. Whether the other taxes were legal or not is not found. The tax deed was clearly void, and being so, it would not, under the statute, be evidence of the correctness of any of the taxes, and Henderson, under the common law rule, would be compelled to show their validity by affirmative evidence.

Under these circumstances, the Circuit Judge felt bound, under "An act to provide for the.recovery of taxes paid on *221real estate by persons claiming title thereto in certain cases,” approved, March 20, 1865- — Lems 1865, p. 5¶5 — to render judgment against Hart for the full amount of the taxes for which his land had been sold, including the costs of advertisement and sale, and twenty-five per centum interest thereon; at the same time that he rendered judgment in Hart’s favor on the main issue in the ejectment. suit. And the only question before us is as to the correctness of this pecuniary judgment.

The first section of the act referred to is as follows:

Section 1. The People of the State of Michigan enaet, That in all suits and controversies involving the title to land claimed hy either party, under a conveyance executed by the Auditor General for nonpayment of the taxes assessed thereon, if such deed shall prove to be invalid for any cause, other than such as are enumerated in section three of this act, the lien thereon for state, county and township taxes, or for either of them, or for any portion of either of them, which may have been rightfully assessed, shall not be discharged thereby, but shall remain in full force, and shall be transferred by said deed to, and vested in the grantee therein named, his heirs and assigns; and the owner of such lands shall not thereby be acquitted from the payment of the taxes for which the same was sold, but the party in such action or controversy, holding and claiming title under such Auditor General’s deed, shall be entitled to judgment or decree in the same action, against the adverse party, for-the sum paid upon such sale for the purchase of said land, and for the sum of all taxes paid upon such lands subsequent to such sale, by such purchaser, his heirs and assigns, with interest on each of said sums from the time of payment, at the rate of twenty-five per cent, per annum, and all legal costs, aud such costs of suit as the court may award, which judgment or decree may be enforced as in other cases, and shall remain a lien on such land until paid; and the land, or so much thereof as shall be necessary, may be sold for the payment thereof, with costs, if sold within such reasonable time as the court may order.”

The true construction of this section is matter of some doubt. It is not very clear whether its purpose is to give a remedy only for those taxes which are “rightfully *222assessed,” or for the whole sum paid upon the sale, whether the land was properly chargeable with them or not. The latter construction would clearly make the act unconstitutional. "While it is unquestionably within the power of the legislature to cure irregularities in the proceedings for the assessment and collection of any taxes which are authorized by law, and to perpetuate their lien upon the land until paid, it is not within its province to declare that a demand which is asserted against a citizen, without authority of law, shall constitute a lien upon his property, and that he shall be precluded from asserting his rights in the courts in regard to the property, except subject to a judgment for the unlawful demand. Curative statutes may cover any mere irregularity in the course of proceeding for the enforcement of a lawful demand; but they can never cure a want of jurisdiction, either in tax proceedings or those of any other description. Nothing is a tax simply because of being called so; but any -proceedings by which a man’s property is to be taken from him on a claim which has no other basis than the naked declaration of the legislature that it shall constitute a demand against him, is unconstitutional and void, as not being “according to the law of the land,” but, on the other hand, wholly unwarranted by legal principles. In this case, the Circuit Judge was to render judgment upon his finding of facts. That finding did not show that any of the taxes were legal, but it did show affirmatively that more than a third of them were illegal. Under these circumstances, there was nothing to show that Hart’s land was legally chargeable with anything, and no judgment should therefore have been rendered against him. The judgment in favor of Henderson must, therefore, be reversed, with costs of this court.