White v. Gibson , 146 Mich. 547 ( 1906 )

Ostrander, J.

{after stating the facts). It has been held, in this State, as between vendor and vendee, that taxes, unpaid when title passes, which have by the tax law become a lien upon the land; are incumbrances. Harrington v. Hilliard, 27 Mich. 271; Eaton v. Chesebrough, 82 Mich. 214; Lindsay v. Eastwood, 72 Mich. 336. See, also, 8 Am. & Eng. Enc. Law (2d Ed.), p. 126 et seq.; Kawle on Covenants for Title, § 77. Whether, after the tax lien has been foreclosed, and to the point where owners of land may obtain a reconveyance by payment of the tax and a penalty, the demand may be called an incumbrance within the meaning of the usual covenant, we are not called upon to determine. Counsel for both parties have assumed that such a demand may be an incumbrance, and the question presented is whether there is any evidence warranting a recovery by the plaintiffs. In such cases, the rule is that the tax or assessment, to be an incumbrance, must be a lien upon the land (Kirkpatrick v. Pearce, 107 Ind. 520; Cummings v. Holt, 56 Vt. 384), must be a lawful tax, legally levied, upon a lawful assessment (Mitchell v. Pillsbury, 5 Wis. 407), and, if it is not claimed, and proved, that a valid title passed by tax deeds, no incumbrance is proved (Tibbetts v. Leeson, 148 Mass. 102). It has been held, too, that, though the particular assessment was invalid, it might be sufficient to show that the tax was one which could be reassessed. Coburn v. Litchfield, 132 Mass. 449. The evidence of plaintiffs fails entirely to show any assessment of the land, levy of a tax, or any proceeding or document from which an assessment, or levy, dr lien, can be legally presumed. or inferred.

The judgment was therefore right, and is affirmed.

Carpenter, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.