This opinion was prepared by the late Justice BIRD and meets my views.
There is in the village of Davison a three-story building which occupies a lot, described as follows:
"Being the northeast corner of lot 24, block 3, of the village of Davison as platted, said land being 69 feet long east and west and 58 feet north and south."
The title of the lot is in defendant George F. Brown. He is also the owner of the first and second stories of said building. The Independent Order of Odd Fellows is the owner of the third story of said building. The order built the third story, and, when finished, it has occupied it as a lodge room. It received a warranty deed of the third story from the owner, which described the conveyance as:
"All that certain piece or parcel of land, situate in the village of Davison, county of Genesee, and State of Michigan, described as follows, to-wit: The third story of a building erected on the following land, viz.: Being the northeast corner of lot twenty-four of block three (3) of the village of Davison as platted; said land being 69 feet long east and west, by 58 feet wide north and south; and said building being 48 feet wide north and south, by 56 feet long east and west; *Page 195 * * * together with the right of ingress and egress at all times, through a stairway on inside of said two lower stories of said building in the southwest corner together with right of way along the south side of said building which right of way and stairway are to be kept permanently free from obstruction."
A prior deed granted the right:
"This grant also conveys the right to rebuild said third story should the same or said building or any part thereof ever be destroyed or rendered untenable."
In the year 1923 the assessing officer assessed the real estate with no exception to defendant Brown, and assessed the "hall and furnishings" as personal property to the lodge. The lodge paid its tax but Brown did not pay his tax. The real property was advertised for sale in 1926 and was included in the auditor general's petition. Brown answered the petition as to his premises, and his objection appears to be that the real estate has been twice, or partially twice, assessed and once paid. His contention is that the third story is real property, and that it could not be made personal property by placing it in the personal property column.
The question presented is whether the third story should have been assessed as real estate or personal property. If the Odd Fellows had a lease of the land upon which its third story sits, the situation would be controlled by 1 Comp. Laws 1915, § 4002, subd. 11, which enumerates what property shall be assessed as personal property:
"All buildings and improvements situate upon leased lands, except where the value of the real property is also assessed to the lessee or owner of such buildings and improvements."
But the conveyance is something more than a lease, it conveys the third story to the Odd Fellows in fee There is no statute that has been called to our attention *Page 196 which covers the precise situation. It is a matter which should receive the attention of the legislature, as similar situations are growing in number, especially in the cities. It partakes more of the nature of real estate than personal property, and perhaps should be assessed as real estate until the legislature provides the manner in which such interests shall be assessed.
But, notwithstanding this suggestion, we are not of the opinion that defendant Brown is entitled to any relief in this action. The record shows that the assessor assessed the third story to the Odd Fellows lodge, as follows:
"Parcel assessed to trustees of Vernor Lodge Number 400, I. O. O. F. hall and furnishings, true cash value personal property, $1,100, and passed by board of review, $1,100, with a total tax of $26.66, that was paid February 13, 1924."
He then assessed the real estate to Brown as:
"A parcel of land of the northeast of lot 24, block 3, commencing at the northeast corner of lot 24; thence west 69 feet; thence south 58 feet; thence east 69 feet; thence north 58 feet to place of beginning, on original plat of the village of Davison, and the valuation is placed by the board of review, $3,900, total tax $94.51."
In so assessing the property the defendant assumes that the assessor has assessed the third story twice, once to the Odd Fellows lodge and once to him. We do not think the assessments necessarily carry this inference. The burden was upon defendant to show that he was assessed for another's property. If the assessor assessed the third story to the Odd Fellows lodge, and then assessed the real estate by lot number or boundaries, the fair inference is that he only assessed the lot and two stories to Brown. And this is the view the chancellor took of it when he said, in reply to defendant's argument that Brown was assessed for the third story: *Page 197
"The Court: I think you may perhaps be right, but I don't think the court would be right or justified in saying the supervisor, at the time he made the assessment, had in mind the third story of that building when he spoke of the Odd Fellows hall."
As before said, the burden was upon defendant Brown to show the irregularity of the assessment. If he were right in his contention, it would have been very easy to have made the matter clear by calling in the assessor who made the assessment and having him state how he assessed it. On failure to do this, the doubt should be resolved against him.
Another question was raised as to the tax for 1919. That tax was canceled by the auditor general and reassessed. The prosecuting attorney of Genesee county agrees with the defendant in his contention with reference to this question. It was not passed upon by the trial court, and, therefore, we will not consider it.
The decree of the trial court holding the tax for 1923 valid for $117.72 should be affirmed, without costs.
FEAD, C.J., concurred with WIEST, J.