Plaintiff brought replevin for forest products, in justice's court, against the defendant. The right of plaintiff to recover depended upon his showing title to the real estate upon which the products were grown. The case was certified to the circuit court, where it was tried, and judgment for defendant entered. Plaintiff appeals.
Plaintiff claims title to the land in question by tax deed given June 5, 1928, for 1924 taxes and notice to redeem served on James W. Sanderson, the claimed last record title owner, who received title by quitclaim deed in 1922 from the estate of James W. Brooks, who received title from the State under a State tax homestead deed given in 1911; notice to redeem under the tax deed was served June 28, 1928, by plaintiff's grantor, Evans, upon Sanderson. Defendant claims plaintiff's title is defective because notice to redeem was served on the last grantee or grantees in the regular chain of title of such lands, and consequently defendant had a right to redeem at any time because persons entitled to notice to redeem had not been served.
The question depends upon the construction of 1. Comp. Laws 1929, § 3535, which, among other things, provides:
"Until six months after there shall have been filed with the county clerk of the county where the land is *Page 415 situated, a return by the sheriff of said county showing that he has made personal service of a notice or proof of substituted service thereof, as hereinafter provided, upon the person or persons appearing by the records in the office of the register of deeds of said county to be the last grantee orgrantees in the regular chain of title of such lands or of any interest therein, at the date of the delivery of such notice to the sheriff for service, and upon the person or persons, if any there be, in the actual open possession of such lands at the date aforesaid and upon the grantee or grantees under the taxdeed issued by the auditor general for the latest year's taxesthen appearing of record in said registry of deeds."
In Griffin v. Jackson, 145 Mich. 23 (9 Ann. Cas. 74), it was said:
"We are of the opinion that by 'regular chain of title' was meant the chain of title based upon the patent, and that one claiming under another tax title was not intended to be included, although we can imagine cases where it would be as important that he should be included — e. g., where his tax title has been sustained by law, and he is in possession under it — and in any case it would seem just that he should be. The legislature recognized this in the later statute, making special provision for notice to both classes."
In G. F. Sanborn Co. v. Richter, 176 Mich. 562, the court said:
"The second position is foreclosed against defendant's contention by the case of Griffin v. Jackson, 145 Mich. 23 (9 Ann. Cas. 74), where this court, speaking through Justice HOOKER, said:
" 'We are of the opinion that by "regular chain of title" was meant the chain of title based upon the patent.'
"The statute (section 140 of the general tax law) provides for service of the notice upon 'the grantee *Page 416 or grantees under the last recorded deed in the regular chain of title to said land, and upon the grantee or grantees under the last recorded tax deed issued by the auditor general,' etc. This language is so plain as to render construction unnecessary. * * *
"Until the statutory notice is served upon all parties entitled thereto and proof thereof is made and filed, the right of redemption remains to all. Hansen v. Hall, 167 Mich. 7, and cases there cited."
In Marshall v. Anderson, 233 Mich. 480, 483, sought to be construed as militating against the cases above cited, it is said:
"The privilege of redemption was given to one whose lands had been sold for taxes to enable him to pay up and secure a reconveyance of his land. Where the auditor general had sold lands this right would be valuable, because the owner would have a contingent interest in the land, but this privilege would be of no avail to the former owners of State tax homestead lands, as the former owners had been divested of title when they became homestead lands. Griffin v. Kennedy,148 Mich. 583. Had notice been served on them they would not thereby have been enabled to redeem, as they had nothing to redeem, they had no contingent nor equitable interest. Therefore, the notice to redeem served on former owners of State tax homestead lands would be a useless ceremony."
The difficulty with this reasoning is that it assumes the proceedings which divested the title of the former owners of the land, in the regular chain of title, were regular, and it ignores entirely the mandatory language of the statute. The question whether the title from the State had been recorded or not did not control in that case. The court understood inMarshall v. Anderson that in G. F. Sanborn Co. v. Richter it was held that notwithstanding the former owners *Page 417 had divested themselves of the title, they were entitled to the statutory notice to redeem. It recognized the giving of notice in compliance with the statute was mandatory, saying:
"Considering all the questions which this holding involves, we think it is the better conclusion to say that the statute is mandatory and should be complied with."
We hold, in accordance with the previous decisions of this court, the statute mandatory, and the failure of the plaintiff to comply therewith rendered his claimed title vulnerable. Judgment of the trial court should be affirmed, with costs.
FEAD and BUTZEL, JJ., concurred with POTTER, J.