therefor; that Joseph Ruhstorfer was a tenant under Kennedy, and had been in possession of the property since March 1, 1904. He also testified that from January 13, 1904, to March 1, 1904, the house on said property was unoccupied. This comprises all the testimony in the case. It was the duty of defendant Kennedy to show that the title was void. No such showing or attempt to show is shown upon this record. As shown by the deed from the auditor general to the State, defendant Kennedy had neglected to pay his taxes for 18 years, from 1882 to 1903. No excuse is offered for not paying the taxes, or for failing to appear in the numerous chancery proceedings, brought by the auditor general to foreclose the tax lien, and to contest the validity of the taxes if he had any objection thereto. In deciding this case, therefore, we must hold that all the proceedings were regular, and that the State obtained title to the lands. I am unwilling to cast any doubt upon the many decisions of this court holding that the State acquires the absolute title to these tax lands. The original owner, after decree and sale, may in a proper proceeding attack the title for certain reasons. When the title is in the State, the original owner has no more interest in it than any stranger to that title. He may purchase the land from the State as may any other person. The design and object of proceedings in chancery are to give the landowner his day in court to test the validity of the tax proceedings. He is a party to that litigation. He knows that his lands are subject to taxes, that he has not paid them, and that proceedings will be taken to foreclose the tax lien. His property is advertised in the public notice required to be given. It does not lie in his mouth, under these circumstances, to say that he has had no opportunity or day in court to test the validity of the taxes assessed against him, or of the regularity of the proceedings by which the State has acquired title to his land. Act No. 229, Pub. Acts 1897, did not change the validity of that title or cast any doubt upon it. That statute simply provided that, when the State sold and conveyed its title, its grantee should give the original owner a notice of his purchase, and that such owner should be entitled to a reconveyance upon payment of double the amount paid to the State, and certain other charges. That statute did not use the words "redeem" or "redemption." The notice to be served required that the purchaser from the State should say in it that he "has title thereto under the tax deed." In the amendment made to this law by Act No. 236, Pub. Acts 1903, the first section of Act No. 229 was not changed in this respect. The forepart of the second section remains the same; the term reconveyance "being used. The amendment to section 2, being section 141 of the general tax laws, provides that: "Any person owning any right, title or interest in said lands shall at any time after the date of issue of tax deeds thereon, and before service of notice as herein provided, be entitled to redeem the land from sale by paying to the register in chancery of the county in which the lands lie, on the certificate of the auditor general or his deputy, all sums paid as a condition of such purchase, together with one hundred per cent. additional thereto, and the further sum of five dollars for each description. By such payment the tax title shall become void and of no effect against the lands thus redeemed. The register in chancery shall, whenever payment is made to him as provided in this section, at once notify the owner of the tax title of the payment so made, and the owner of the tax title shall forthwith deliver a quitclaim deed of said land running to the person making such payment, and shall also deliver to said register the tax deed, certificates of purchase, tax receipts and all other conveyances relating to said tax title before he shall be entitled to receive the money paid to said register as herein provided. Upon delivery of such reconveyance the register in chancery shall at once pay over to the owner of the tax title all sums received by him for redemption of the lands therein described." In construing what the words "redeem " and "redemption" mean in this statute, the entire statute must be considered. To my mind the conclusion is irresistible that Act No. 229, Pub. Acts 1897, as amended by Act No. 236, Pub. Acts 1903, is not intended to cast a doubt upon the title of the State or the title of the purchaser from the State. On the contrary, it recognizes that title as valid, and in selling and conveying its title it imposes a condition, which it has the right to do, as has any private individual in selling his property, that such purchaser must serve a notice upon the original owner that he has a valid title, and, if the original owner chooses to pay him certain amounts, the tax purchaser shall reconvey the title to him. The law confers upon the negligent owner, not any title or right, but a privilege to obtain a reconveyance upon specified terms. The record does not show when the examination to determine whether the land was abandoned was made. No one may then have been in possession. The abandonment which the statute contemplates is not at the time the deed from the auditor general to the State is executed, but at the time the examination is made to determine that fact. It is conceded that defendant Kennedy was not in the actual possession. If possession by the defendants as his tenants were a defense to the action, he has failed to make it appear that such occupancy existed when the examination was made. OSTRANDER, J. (dissenting). This court has used the words "absolute title" in describing the interest acquired by the State in lands sold for taxes after the statute period of redemption had expired. The opinions in which the words appear to have been given the largest meaning are, it seems to me, Allen v. Cowley, 128 Mich. 530, Hickey v. Rutledge, 136 Mich. 128, and Blake v. Grondin, 141 Mich. 104. There may be other cases in which the extent of the interest so acquired by the State is expressed otherwise than by the somewhat general formula "absolute title." It is apparent that, if the tax law is to be construed and applied according to a notion that the interest of the landowner is completely divested when his land is sold and he has failed to redeem it, conclusions will be reached widely different from those arrived at in conformity with the idea that, until some one possessing the right to the entire beneficial interest in the land appears, there remains with the landowner an interest in the land of which he has not theretofore been divested. Whether construction shall proceed according to one or other of these notions is not determined by reasoning based upon what the legislature, in making a tax law, might have done. We know what the legislature has done, and construction, where it is necessary, must proceed upon the assumption that it has concluded the exercise of legislative power in this behalf. Indeed, if the legislature might have saved less to the landowner than it has, it is ground for an argument for, rather than against, the proposition that it has not meant to divest him of all interest in the land except as an ultimate instead of an intermediate result of the enforcement of the law. To my mind, the idea most agreeable with reason is that so long as a beneficial interest in land, possessed by the owner of the original title, is left undisturbed and capable of being enjoyed by him, he has not lost it. So long as it is required that proceedings must be taken by the purchaser of the interest of the State before any person, other than the original owner, can acquire this beneficial interest, in which proceedings, at the option of the owner of the original title, the interest of such purchaser may be extinguished or acquired, the owner has not been divested of all interest in the land, whether such interest is called "title" or something else. The original title is the only title which is or ever was in existence which carried with it as a necessary incident to its owner the beneficial interest in the land. Due process of law to deprive one of land means, I take it, something more than a legislative declaration that the title to land has been acquired by the State, when such declaration is coupled with the further one that, before the title so acquired can draw to it any interest in the land which is beneficial, it must be offered to the land owner at a fixed price, be refused, and then enforced by judicial proceedings in which such title is to `some extent open to attack by the landowner. This court declared, in Corrigan v. Hinkley, 125 Mich. 125, that the owner of the title to State tax lands had not even a colorable right of entry, and that in taking possession he was a trespasser upon the lands described in his deed until he had complied with the statute requiring notice to be given to the owner. To the same effect is Huron Land Co. v. Robarge, 128 Mich. 686, and other decisions. See, also, O'Connor v. Carpenter, 144 Mich. 240; Griffin v. Jackson, 145 Mich. 23; John Duncan Land & Mining Co. v. Rusch, 145 Mich. 1; Toolan v. Longyear, 144 Mich. 55; Adkin v. Pillen, 136 Mich. 682; Boucher v. Trembley, 140 Mich. 352. It is these and similar decisions which in my opinion support the proposition that the words "absolute title," however many times employed, are conveniently descriptive, rather than legally definitive, of the extent of the interest conveyed to and possessed by the purchaser of State tax lands, and that it is open to the court to hold that the owner of the original title is not by sale of his lands for taxes and expiration of the period of redemption divested of all interest in the land. Under certain conditions, lands held as State tax lands may be deeded by the auditor general to the State, and be sold at the State land office. The State does not in this way acquire a new interest in the land, and is not a purchaser from the auditor general. It is a measure of convenience. The legislative notion seems to have been that such lands had no longer any proprietor representing the original title were abandoned. If inquiry develops the fact that the lands are occupied (if abandonment is negatived) the lands remain in the class known as State tax lands. It is only unoccupied lands which are so subject to disposition. Meagher v. Dumas, 143 Mich. 639. An unexpired right of redemption will make the deed to the State and from the State to the purchaser, under this provision of the 148 MICH.-38. |