Farr v. Nordman

Kelly, J.

Plaintiffs and appellants brought action to set aside a tax sale of 2 lots, of which they were the owners in 1947.

In December, 1947, plaintiffs received notice that the tax due on the lots amounted to $12 and, in order to avoid a further penalty of 3%, should be paid on or before January 10, 1948. Plaintiff Evelyn Farr testified that she was unable to pay the tax before the due date, but that in March, 1948, she sent to Vera Shipman, Plainfield township treasurer, a $10 bill and two $1 bills, and that she was subsequently *268advised, by Mrs. Shipman that the money had been sent to the courthouse. Mrs. Shipman denied receiving payment in the form of a $10 bill and two $1 bills, but said she did receive a money order for $12 which she returned to plaintiff because plaintiff had refused to pay the 3% penalty.

In May, 1950, the property was sold for taxes to defendant Amos Nordman, who acquired tax deeds on May 22, 1951. There is no'claim of irregularity in the sale as such, nor that notices were not sent to plaintiffs. Nordman testified that he telephoned plaintiffs and tried to arrange for a redemption of the taxes, but met with little success.

On February 1, 1952, Nordman served notices as required by the provisions of CL 1948, § 211.140 (Stat Ann 1950 Rev § 7.198), advising plaintiffs that he had purchased the property for the unpaid taxes and that they were entitled to reconveyance of same at any time within 6 months upon payment of the amount due, plus 50% and costs, which amounted to a little over $35, and payable, as stated in the notice: “To the undersigned (Amos Nordman) or to the register of chancery of the county.” The time to redeem expired August 1, 1952.

Plaintiff Harold Farr testified that instead of paying directly to Nordman or to the register in chancery (in this case the county clerk), on May 6, 1952, he went to the county treasurer’s office to redeem the property for the 1947 taxes. He stated that he was told he .would have to first- redeem other taxes and paid the sum of $18.75, even though the notice he had required the payment of $35.04. He was given a redemption certificate showing the taxes for 1948 were redeemed. Plaintiff further testified that he thought he was paying the 1947 tax.

Defendant Nordman brought an ejectment action against plaintiffs, and plaintiffs thereupon filed this *269suit to set aside the tax sale: The lower court dismissed plaintiffs’ bill of complaint, and plaintiffs bring this appeal.

In deciding this case our consideration is first directed toward the fact that-plaintiffs definitely had notice of the tax sale for the 1947 tax on February 1, 1952, and that this suit was not commenced until September 11, 1953, more than a year after' such notice.

CL 1948,. § 211.70 (Stat Ann 1950 Rev §7.115) provides :

“That no sale shall be set aside after confirmation, except in cases where the' taxes were paid, or the property was exempt from taxation. In such cases the owner of such lands may move the court at any time within 1 year after he shall have notice of such sale to set the same aside, and the court may so order upon such terms as may be just.”

In Odgers v. Lentz, 319 Mich 502, the above-quoted statute was under consideration, and the Court in that case said (pp 506, 507):

“The Court held in Hayward v. O’Connor, 145 Mich 52, 55; and in Shaaf v. O’Connor, 146 Mich 504, 506 (117 Am St Rep 652):
■ “ ‘When the owner of land has notice — ho matter how he obtains that notice — that his land has been sold for taxes, he must, if he desires to have the sale set aside by the circuit court, take proceedings within-1 year.’
“See, also, Palmer v. State Land, Office Board, 304 Mich 628. As stated in Pratt v. Corns, 214 Mich 390, 395:
‘One who has let his legal remedy be outlawed cannot obtain relief in equity. Webster v. Gray, 37 Mich 37. This doctrine has been frequently announced by this, Court.’ ”

In view of what has been said, the other errors claimed by plaintiffs are not necessary-to •this-de*270cisión as their determination, one way or the other, conld not alter the ultimate result. These issues primarily concern questions of fact in regard to the alleged $12 payment, the payment of taxes in May, 1952, hy plaintiff Harold Farr, and that the. $12 should have been accepted as a partial payment of the 1947 taxes. Suffice it to say that the lower court’s conclusions in regard to these matters are adequately substantiated by the record.

We are not unmindful that plaintiffs stand to lose their home, and we have diligently sought, as did the lower court, to find a way to grant them the relief prayed for. However, in view of the decision in Odgers v. Lentz, supra, such relief must be denied.

Decree of the lower court dismissing the bill of complaint is affirmed. No costs, a public question being involved.

Dethmers, C. J., and Sharpe, Boyles, and Carr, JJ., concurred with Kelly, J.