HORTON v. SAUNDERS.

Frebruary, 1857, to Robert P. Saunders, to secure the payment of $196, duly acknowledged and recorded. A deed of said premises, made on the 21st day of September, 1857, by James Graham, under sheriff of said county, to James Brown. The deed recited the making of said mortgage, by Lane and wife, to Robert P. Saunders, and the publication of a notice that the premises would be sold on the 21st day of September, A. D. 1857, at the Court house in Berrien, and that on said day he, the said James Graham, sold said premises at public vendue to said James Brown for $283 58. Said deed was duly acknowledged and recorded, and was, in all respects, in the ordinary form of deeds made by sheriffs at the sale of lands, on foreclosure of mortgages by advertisement

under the statute.

He also proved a quit claim deed of the premises in question, made by James Brown to Robert P. Saunders, dated 8th of September, 1859, duly acknowledged and recorded; and a warranty deed of the same premises from Robert P. Saunders and wife to Edward Saunders, dated August 6th, 1862, . duly acknowledged and recorded.

The defendants introduced, in evidence, a deed of said premises from the Auditor General of the State of Michigan to Samuel Stratton, dated 9th of January, 1862 which deed recited that a sale of the premises was made on the first day of October, 1860, by the Treasurer of said county, for the delinquent taxes of the year 1859, and that said Stratton became the purchaser at such sale. Also a quit claim deed of the same premises from said Stratton and wife to Robert P. Saunders, dated June 11th, 1862, and a deed of the premises made by Robert P. Saunders and wife to Edward Saunders, the defendant, dated August 6th, 1862. These deeds were all recorded. The Court below granted a decree for the sale of the premises, to satisfy the amount due on the mortgage. The defendant Saunders appealed.

HORTON v. SAUNDERS.

S. N. Taylor, for complainant.

A.

The equity of redemption of the land in question is in defendant Saunders, for he now holds the title of the mortgagors, Lane and Ingersoll, having aquired the same since the date of complainant's mortgage. He is therefore a proper party defendant to this suit.-Lansing v. Brady & Gilson, 10 Cal. 265; Chamberlain v. Lyell, 3 Mich., 448; Eagle Fire Ins. Co. v. Lent et al., 6 Paige, 635; Story's Eq. Pl, §177, §193; 2 Barb. Ch., pr. 174; Corning & Homer v. Smith, 2 Seld., N. Y., 82. Wanzer v. Blanchard et al., 3 Mich., 11.

The title acquired by a sale of land for taxes has nothing to do with the previous chain of title, nor does it in any manner connect itself with it. It is the breaking up of all titles and operates not to support but to destroy them.-Lacy v. Davis & McFarren, 4 Mich.,

140.

Whatever title Edward Saunders may have acquired by virtue of the tax title, set up in his answer, being adverse to the title and interest sought to be foreclosed, cannot be litigated in this suit. Bank v. Walker, 3 Barb. Ch., 438.

2. But, even if defendant's tax title could be litigated in this suit, it would not establish a defence to this foreclosure. Robert P. Saunders owned the equity of redemption of the mortgaged premises, by virtue of a deed from James Brown as early as September 8, 1859, some months before the taxes of 1859 became due and payable, and the land in question was not sold for the taxes of 1859 until October, 1860.

Robert P. Saunders could not strengthen his own title, or defeat complainant's mortgage, by allowing the land to be sold for taxes, and he becoming the purchaser, either directly or through a third person. Page v. Webster et al., 8 Mich., 263.

HORTON V. SAUNDERS.

N. Bacon, for defendant.

1. Saunders claims by no other title than that which is derived from the deed of the Auditor General.

The complainant, it is true, attempted to show that he derived title from the foreclosure of a mortgage, made by Lane and wife to Robert P. Saunders, in February, 1857. The only proof of which was the deed of the sheriff to James Brown. This was not enough. He should have gone further and shown the advertisement and sale. Barnum v. Carhart, 10 Mich. R., 338.

Among

Sibley v.

2. The deed from the Auditor General cut off and extinguished all prior title and incumbrances. them was the mortgage of the complainant. Smith, 2 Gibbs., Mich. R., 486, 1 Comp. Laws, p. 318, $124.

BY THE COURT:

The proceeding which was had for the foreclosure of the second mortgage, whether regular or irregular, had the effect to transfer at least the mortgage interest to the purchaser; and when he deeded to Saunders, the latter occupied the position of subsequent mortgagee as to Horton, who, in foreclosing his mortgage, was entitled to make him a defendant. The fact that Saunders had also become the holder of a tax title can make no difference. Horton has the right in this suit to foreclose all interests derived from the mortgagor subsequent to his own mortgage; and a claim which a party makes adverse to this mortgage, cannot be used to shield and protect one which is not adverse, but subject to it. But inasmuch as the taxes for which the land was sold were burdens which had to be removed, in order to protect the mortgage interest, upon which they were as much charged as upon the equity of redemption, Saunders could not, by purchasing the tax title, obtain the

WRIGHT v. DUNHAM.

right to use it adversely, and it simply inures to the protection, not to the destruction, of the regular title. There is no error in the decree, and it must be affirmed.

Reuben Wright v. Silas F. Dunham.

Tax title-evidence to defeat. The statute, (R. S. of 1846, p. 118, $109,) makes a tax deed prima facie evidence of the correctness of all the proceedings, and of title in the purchaser; and this presumption of correctness must prevail in its favor until evidence is given of facts which show irregularity. It is not sufficient to prove facts from which an inference of irregularity may be drawn, if such facts are consistent with others which would make the proceedings regular.

Where, therefore, to show that a tax was erroneously assessed on a part, instead of the whole, of a parcel of land, the collector's return was put in evidence, which showed a tax against a part of the land only, but it was consistent with this return that the tax might have been correctly levied on the whole, and a part of the land thus cleared by payment before the return, it was held that the Court, in support of the deed, would presume such payment. Held, also, that the mere allowance of illegal demands, by the board of supervisors the preceding year, was not sufficient to show that illegal taxes were levied, where there was no evidence to show that the amounts were included in the tax levy for the year, or that there was not money on hand to pay them at the time of their allowance.

Case made after judgment from Ionia Circuit.

Judgment of the Court below was for the defendant. The facts are sufficiently stated in the opinion.

A. Gould, for plaintiff.

A. F. Bell, for defendant.

COOLEY J.:

This was an action of ejectment brought by Wright to recover the south-east quarter of section thirty-five, in township seven, north of range seven west-being the Township of Berlin, Ionia County-to which he claimed title under a sale of the same as State tax lands; they

WRIGHT v. DUNHAM.

having been struck off to the State for delinquent taxes of 1843, and sold to the plaintiff October 6, 1847. By the law in force at the time of this sale, the deed of the Auditor General, given to carry it into effect, was made "prima facie evidence of the correctness of all the proceedings to the date of the deed, and of title in the grantee therein named."-R. S. of 1846, p, 118, §109.

The defendant sought to rebut the prima facie case made by the deed, by showing that illegal taxes were included in the sum for which the land was sold. To establish this fact, he proved by the records of the board. of supervisors that, on March 22, 1842, a contract was made by them with one Elvert to tend a ferry across the Grand River at Ionia, for one year from the 11th day of April then next, for the sum of one hundred and fifty dollars; and that his account for services as such ferryman was afterwards, and within a year from that time, allowed by the board. He also proved that, on October 5, 1843, the board "voted to raise fifteen hundred dollars for county purposes for the current year; and he showed by their records that the accounts allowed by them during the preceding year, including the allowances to Elvert, amounted to one thousand four hundred and sixty-two dollars and six cents. And it is insisted that the board had no authority to make this contract with Elvert, and that it is a reasonable presumption, from the facts shown, that the amount thus illegally allowed to him was included in the tax levy of 1843.

If, by law, the accounts allowed by boards of supervisors were to remain unpaid until provided for by taxes. raised the succeeding year, the presumption which the 'plaintiff insists upon might be a reasonable one; but as it was both competent and proper for them to vote in each year such sum as they should estimate to be necessary to meet the demands against the county for the fiscal year succeeding, we cannot, in the absence of any proof on the subject, conclude that they did not adopt