McCreary v. Shields

Boyles, J.

(dissenting). I am for reversal.

These 2 lots referred to by Mr. Justice Reid were described in the conveyances and of record by metes and bounds. Plaintiff McCreary admittedly was'in open and continuous possession of the lot on which the house stands (now called “lot K”) beginning with 1925 up to the present litigation. It may be conceded that she had acquired title to said house and lot by adverse possession, by 1940, as found by Justice Reid. But plaintiff has never acquired any record title by deed or otherwise. The taxes never have been paid on said house and lot and the State acquired the legal title therein by decree and State bid at a tax foreclosure sale in 1941. The title of the State became absolute, a new chain of title was started and all previous claims of interest or title therein were then extinguished. Plaintiff McCreary théreafter had no more interest or right in said property than a stranger. James A. Welch Co., Inc., v. State Land Office Board, 295 Mich 85; Meltzer v. State Land Office Board, 301 Mich 541. If, as stated by Mr. Justice Reid, said plaintiff became the equitable owner of said house and lot in 1925, and the legal owner thereof by adverse possession in 1940, said title, both equitable and legal, became and was extin-' quished when the title of the State became absolute in 1941. At the so-called scavenger sale in 1947, the' State land office board sold and deeded said house and lot to defendant Shields. Mr. Justice Reid would now take away that record title from defendant Shields and decree it to plaintiff McCreary in' exchange for plaintiff’s title'to the vacant lot .which *298all' the time since 1925 has stood in the plaintiff. I do not agree with that conclusion.

Nowhere, since the State land office board act was passed, have we ever adjudicated a return of title to the former owner, from a purchaser at scavenger sale, solely on the ground that the equities were with the former owner. We have recognized that tax foreclosure decrees, and scavenger sales of State-owned land, often result in hardship to the former owner, but that is not ground for equitable relief. For the purpose of terminating the years of tax delinquency and with the purpose of turning tax delinquent lands over to taxpaying private owners with finality, we have uniformly held that a new chain of title was started.

Nor am I in accord with the view that the plaintiff McCreary in the instant case is without fault which if otherwise might entitle her to equitable consideration. In 1925 she and her husband took title to a vacant lot without determining whether the description in their deed covered the house and lot they intended to acquire. During more than 20 years while plaintiff was in possession, the owners of other lots in the same plat amicably straightened out like mistakes in their descriptions by exchanging deeds and by the .entry of a consent decree in the circuit court in chancery. But.it was not until after defendant Shields had acquired title to the house and lot in question by a deed from the State land office board in 1947 that the plaintiff took any steps toward obtaining a correct title. The plaintiff knew, or should have known, from her tax bills from 1929 to 1938 and other circumstances, that the house was not assessed as a part of the lot on which she was paying taxes. During that time McCreary paid only about one fourth as much taxes as she had previously been paying on a house and lot. It is not reasonable to believe;,that such a variance would pass unnoticed. *299'Furthermore, plaintiff had actual notice that there was something wrong with her title and taxes. A tenant of the plaintiff’s in the house and lot in question from 1940 to 1947 testified:

“Mrs. McCreary, the daughter, came to the house once, around 1940 or 1941. I had received a letter at that time addressed only by house number. It had something to do with the back taxes on the lot. I gave the letter to Mrs. McCreary and she stated she would look into the back taxes. She also remarked that the lot number wasn’t the same but that she would look into it. This letter arrived sometime in 1940 or 1941.”

We should also note that the published notice of hearing on the auditor general’s petition and order of hearing for a chancery decree on foreclosure of taxes, in 1941, were equivalent to a personal service on McCreary. Triangle Land Co. v. City of Detroit, 204 Mich 442 (2 ALR 1526). Yet the plaintiff apparently paid no attention to those proceedings, nor to the proceedings under which the State land office board deeded the house and lot to defendant Shields. During that time, 1941 to 1947, inclusive, McCreary not only had lost all her right or title in the house and lot, but they were legally acquired under admittedly regular proceedings by defendant Shields. I do not agree that the equities are with the plaintiff McCreary.

Plaintiff for relief in equity relies solely on the claim of a mutual mistake. There was no mutual mistake as between McCreary and Shields, although there were other mistakes. The tax assessor made a mistake in sometimes assessing plaintiff’s vacant lot on a valuation of a house and lot. Plaintiff made the mistake of accepting a deed on the wrong description, and in failing to ascertain the true situation .during all the years when the taxes were not paid on *300'the house and lot in plaintiff’s possession. Neither the auditor general nor the State land office board can be said to have made any mistake when a decree was entered foreclosing on the delinquent taxes unpaid on the house and lot, and in deeding that description . over to the defendant at scavenger sale. The State foreclosed and deeded the proper description, on which the taxes had not been paid. The only mistake charged against defendant Shields seems to be that she thought she was buying a vacant lot but, instead, acquired the description of a house and lot.

However, it cannot be said that such was a mutual mistake as between McCreary and Shields when Mc-Creary admits that she did not even know that defendant Shields had a deed until the proceedings : started later by Shields before a circuit court commissioner. Equity does not relieve from a unilateral mistake of fact. The mistake must be mutual and . common to both parties, and the proof thereof must be clear and satisfactory. Emery v. Clark, 303 Mich 461; Holda v. Glick, 312 Mich 394.

. At the time when plaintiff’s bill of complaint was . filed, the record legal title to the vacant lot was, and . still is, in McCreary. The legal title to the house and .lot is in defendant Shields by virtue of the State ■:deed. I am not in accord with Mr. Justice Reid’s ■ conclusion that title to the house and lot should be taken from defendant Shields and turned over to . plaintiff McCreary in exchange for a transfer of the Title to the vacant lot from McCreary to Shields. .The “option” thus extended to defendant Shields is that she convey to plaintiff the title to her lot by the . execution and delivery of a deed' of conveyance,- or , decline to do so and thereby be compelled to accept .a-decree to the same effect; in short, to give up the .title to the lot which she has legally acquired from , the State, by 1 of 2 different methods, by deed or by decree, and accept plaintiff’s vacant' lot, or $337.68 *301for a lot she now owns worth $2,500. The only ground for such a result, alleged in plaintiff’s hill of complaint or discussed in her brief, is that there was a mistake. Not only must there have been a mutual mistake, but the evidence of such a mistake “ought to be so clear as to establish the fact beyond cavil.” Vary v. Shea, 36 Mich 388, 398.

The decree of the trial court which Mr. Justice Reid would affirm, except as modified, specifically ‘reforms the deed by which the McCrearys obtained title in 1925, and also the deed whereby defendant Shields obtained title to her lot in 1947, by conveyance from the State. None of the grantors in these conveyances was made a party to the instant case, although the descriptions in their conveyances are specifically reformed by said decree.

In Emery v. Clark, supra, at 470-473, many decisions of this Court are gathered and considered which clearly establish the rule in this State, that to reform a written instrument the mistake must be mutual and common to both parties and the proof must be clear and convincing, “so clear as to establish the right to relief beyond cavil.” Schuler v. Bucuss, 253 Mich 479.

“The evidence must be clear and convincing and must establish beyond cavil the right to reformation.” Sobel v. Steelcraft Piston Ring Sales, Inc., 294 Mich 211, 217.

Neither the bill of complaint nor plaintiff’s brief filed here seek relief on the ground of unjust enrichment. Absent that claim, we should not base an opinion or enter a decree in the instant case on that foundation.

The decree of the court below should be set aside and the bill of complaint dismissed. Costs to appellant. . , . -•

Sharpe, J., concurred with Boyles, J.