Taylor v. Auditor General , 275 Mich. 47 ( 1935 )

This case presents a rather anomalous situation.

At the tax sale held by the county treasurer of Wayne county in May, 1932, plaintiff made purchases aggregating about $96,000. He did not pay any part of the tax purchase money within 24 hours after the bid, as provided in 1 Comp. Laws 1929, § 3462, as amended by Act No. 71, Pub. Acts 1931, but he paid in instalments extending over several months.

In Semmes v. Fuller, 263 Mich. 214, at suit of an original owner of part of the land so purchased, we declared the sale to plaintiff void, holding that the statutory provision for payment within 24 hours is mandatory. In the instant case (both parties conceding that under Semmes v. Fuller, supra, the tax sales herein to plaintiff were void), plaintiff seeks writ of mandamus to compel the auditor general to refund to him the moneys he paid on the purchases, claiming under 1 Comp. Laws 1929, § 3490, which provides for refund to a tax purchaser of the amount received from such purchaser if the tax sale is made "in contravention of any of the provisions of this act."

The anomaly arises from this: That the facts as disclosed in the record in the Semmes Case are different from the facts as disclosed in the record in this case. As we must decide cases upon the facts presented, the difference in facts results in the anomaly that the same tax sale may be held both void and valid; and it is not inconceivable that, in other suits between plaintiff and individual original owners involving the same purchases, the factual situation may take still another trend. We cannot accept the concession that the Semmes Case controls here.

In Semmes v. Fuller, supra, because payment was made in instalments, the tax purchases had the earmarks of sales on credit. In an agreed statement of facts, the parties asserted that the delay in issuing certificates to plaintiff was explained by the county treasurer as due to press of business in his office, but no explanation nor excuse for failure of plaintiff to pay for his purchases within the 24 hours was offered. This court held that the sale was on credit, decision proceeded upon such finding of fact and the opinion must be read as applying to such situation.

In the instant case the facts, as alleged by plaintiff and accepted by the auditor general, are that plaintiff's agent appeared at the tax sale to purchase lands, the treasurer told him to buy but that he would not receive any money on the purchase until after the sale because of the great number of descriptions involved in the sale and confusion in his books. No claim is made that there was an agreement for credit, either actual, by tacit understanding, or by subterfuge; nor that delay in payment by plaintiff was due to any other cause than inability or fault of the treasurer. Obviously, the facts before us disclose that the sale was not on credit and, therefore, is not governed by the Semmes Case.

In Re Petition of Auditor General, post, 53 (104 A.L.R. 813), with exhaustive citation of authorities, we held a sale not on credit not void and pointed out that the authorities sustain the Semmes Case in holding a sale on credit void. The distinction so made is reasonable because it is fundamental.

Whether from good or bad motives, a sale on understanding for credit amounts to collusion between the treasurer and prospective purchaser to violate the law. It opens the door to unlawful preference of purchasers, to virtual fraud upon landowners and upon prospective buyers, and has a tendency to discourage the latter to the general detriment of tax sales.

On the other hand, a sale not upon credit, in which the purchaser is willing but is unable to pay because of the refusal of the treasurer to accept payment on account of administrative difficulties, rests upon a different foundation. To deny a bona fide purchaser the benefit of his bid under such circumstances would deprive him of his statutory right to perfect the sale on account of neglect or failure of the officer to obey the law. Clearly, the purchaser would have legal remedy to compel immediate receipt of payment and issue of certificate. His awaiting the necessities of the treasurer, ordinarily with slight delay, instead of bringing suit with its attendant expense and lapse of time, should not, and does not, defeat his legal right of purchase.

The weight of authority is that the statutory requirement for payment of taxes within a specified time is directory. In the cases so holding, there were no intervening rights and the effect of violation of the statute is made to depend upon circumstances. We do not depart from the statement in theSemmes Case, that the provision is mandatory because the sale was on credit. We would not hesitate to repeat the statement in a case where, because of failure to pay within the statutory time, the landowner is deprived of an opportunity to pay, other tax purchasers to buy, or under other circumstances where violation of the law worked injury or injustice. But, obviously, the provision cannot be held mandatory where the purchaser is ready, willing and able to complete his purchase within the statutory time, is prevented therefrom by an act of the treasurer, and would have a right of action to compel completion of the purchase.

Under the facts now before us, the sale was not upon credit, was not subject to a mandatory operation of the statute requiring payment within 24 hours and, as between the parties hereto, was valid. The taxes involved in Semmes v. Fuller,supra, are controlled by the law of the case. Plaintiff is entitled to refund thereof and writ will issue. As to the other taxes, writ of mandamus will be denied. Neither party will have costs.

It has been suggested that, relying on the Semmes Case, landowners and others have changed their position to their injury and equities have arisen which should entitle them to relief by way of extension of the period of repurchase or otherwise. It is conceivable that equities may have so arisen which, upon prompt action and doing equity, would entitle persons to equitable consideration and relief. But, of course, we cannot here anticipate such cases or render decision thereon until they have been duly presented.

NORTH, C.J., and WIEST, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred with FEAD, J.

POTTER, J., concurred in the result.

The late Justice NELSON SHARPE took no part in this decision.