Abbildungen der Seite
PDF
EPUB
[ocr errors]

In Hart v. Henderson, 17 Mich. 218, it was said by Chief Justice Cooley: "Nothing is a tax simply because of being called 80; but any proceedings by which a man's property is to be taken from him on a claim which has n other basis than the naked declaration of the legislature that it shall constitute a demand against him is unconstitutional and void, as not being ‘according to the law of the land,' but, on the other hand, wholly unwarranted by legal principles.”

The only basis for the action in the present case is the declaration of the legislature that these assessments shall constitute a legal demand against said corporations. In the case of Mogg v. Hall, 83 Mich. 576, 47 N. W. 553, it appeared that certain land of the plaintiff had been assessed in 1884 for the construction of a drain under the drain law then in force: Act No. 269, Public Acts 1881. That act, like the charter of Grand Rapids prior to 1895, did not make such assessment a personal charge on the owner, but declared it to constitute a lien on the land, and provided for a sale of the land in case of nonpayment. It was said by the court in that case: “Under this law the property of the then owner of the land could not have been seized and sold to satisfy the tax. If not paid, the only thing the collector could do was to return the lands. The tax was one levied upon the land, and not against the owner. This is further shown by the fact that, in the law of 1885, these taxes were expressly made a personal claim against the owner, and provision made for their collection as against him, the same as other taxes are collected: Act No. 227, Pub. Acts 1885. This is an indication that the legislature construed the act of 1881 as deficient in this respect. It was also provided in 244 the act of 1885 that all drain taxes 'properly returned to the county treasurer,' and remaining unpaid, 'may be ordered charged back by the board of supervisors, and reassesso upon such lands, in the same manner that unpaid or rejected taxes may be charged back by the auditor general, and reas. sessed, under the general provisions of law.'.... When this tax was originally assessed, in 1884, under the law of 1881, as before said, it could not have been made a personal claim against the owner of the land. It was never levied against him, but against the land. The law of 1885 undertakes to make these taxes a personal claim against the owner of the land,

This act could not have the retrospective action contemplated by the act. Taxes levied after the act went into effect may properly be made a personal claim, but the rejected

[ocr errors]

1: Wichell, the lessee; the members of the firm of A. Ives &

17a exbanie a lien for work already done affects the remedy
ad is constitutional: Bolton v. Jobus, 5 Pa. St. 145, 47 Am. Dec.

taxes of 1884, reassessed under the act of 1885, cannot, in our opinion, be made a personal claim against the owner of the land.”

We think the above case is controlling of the present, and that no other of defendant's contentions need be considered.

The order of the court below holding the act valid, and entering judgment for the plaintiff, must be reversed. No new trial will be ordered. It follows that the appeal of the city in reference to the other taxes cannot be sustained, and as to those the judgment must be affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred with Long, J.

pred Liability for Tages and assessments is discussed in the
spresik Dote to Richards v. Commissioners of Clay County, 42
De Bem 137-661, and in the subsequent cases of Village of
It leaks, 197 II, 363, 90 Am. St. Rep. 172, 64 N. E. 362;

Carats . Gray, 12 $. Dak. 124, 76 Am. St. Rep. 591, 80

CROUSE F. MICHELL.

[130 Mich. 347, 90 N. W. 32.]
LANDLOED AND TENANT –Assignment of Lease--Collatera!
1-A gorenant not to assign a lease without the consent of

2nd is not broken by an assignment of the lease as security
are (p. 454.)

LEASE FOR YEARS-Assignment-Recording.-A lease for
** than three years is a conveyance of such an interest in lands

ay make real estate recording laws applicable to an assignment
sa lase as secarity for a debt. (p. 487.)

LEASE-– Assignments of–Priority.--As between two un•
plantasigaments of the same lease, the one first executed bas

HOOKER, C. J., concurring. This action is a second attempt through legal proceedings to collect an assessment made for local improvements upon the property of the defendant. The first failed for the reason that the legislature had failed to provide a method of enforcing payment by proceedings against the land assessed. In dismissing the bill in that case, we held that the local assessment was valid, and we were careful not to hold that the claim of the city for the assessment was not a valid and subsisting obligation, if not a lien upon the land. Subsequently the legislature attempted to make this a personal debt due from the defendant to the city, and incidentally provided 245 that the land assessed should be discharged of any lien therefor. I concur with Mr. Justice Long in holding that this act cannot be given a retroactive effect, and therefore that it has no application, in any of its provisions, to this cause. The judgment must therefore be reversed, and no new trial ordered; but it should be understood that the lien of the city for its taxes, if it ever had any, is unaffected by the legislation mentioned, or by these proceedings.

Moore and Montgomery, JJ., concurred with Hooker, C. J.
Grant, J., did not sit.

man & Butzel, for the complainants.
Bilar & Spaulding, for the appellants.
** MOORE, J. This is a bill filed by the assignees of a
* to have it sold in satisfaction of the lessee's indebtedness

se ured by the assignment. The circuit judge granted
skene acording to the prayer of the bill of complaint. The
si mit here by appeal

. 2 terms of the lease as to assignments and transfers of the sets interest without the consent of the lessor will be resom to later. The complainants' assignment was not conod ts by the lessor. The main question in the case is on rity of this transfer, without consent, against a sub

transfer, made with the lessor's consent. The defendat are the personal representative of Mr. Parker, the lessor;

Retrospective Statutes are considered in the monographic note to Goshen v. Stonington, 10 Am. Dec. 131-140. Vested rights cannot be disturbed by retroactive legislation: Gladney v. Sydor, 172 Mo. 318, 95 Am. St. Rep. 517, 72 S. W. 554; but over mere remedial procedure the power of the legislature is absolute, and laws regulating it involve so much the consideration of public convenience and welfare that individuals cannot be conceded vested rights therein: Oshkosh Waterworks Co. v. Oshkosh, 109 Wis. 208, 95°Am. St. Rep. 870, 85 N. W. 376. It has been held that a statuté operating retrospectively

se, tänkers, to whom the assignment with consent was made

W: Wichell; Mr. Harmon, the trustee in bankruptcy of sa Burs; and the Macdonald Clothing Company, who hold

2 1 & Sons a sublease for substantially the unexpired en de the lease. The lease is of a store building at the cor

to give a mechanic a lien for work already done affects the remedy only and is constitutional: Bolton v. Johns, 5 Pa. St. 145, 47 Am. Dec. 404.

Personal Liability for Tares and assessments is discussed in the monographic note to Richards v. Commissioners of Clay County, 42 Am. St. Rep. 655-661, and in the subsequent cases of Village of Lemont v. Jenks, 197 lll. 363, 90 Am. St. Rep. 172, 64 N. E. 562; Hanson County v. Gray, 12 S. Dak. 124, 76 Am. St. Rep. 591, 80 N. W. 175.

CROUSE v. MICHELL.

[130 Mich. 347, 90 N. W. 32.] LANDLORD AND TENANT-Assignment of Lease--Collateral Security.-A covenant not to assign a lease without the consent of the landlord is not broken by an assignment of the lease as security for a debt. (p. 484.)

LEASE FOR YEARS—Assignment-Recording.-A lease for more than three years is a conveyance of such an interest in lands as to make real estate recording laws applicable to an assignment of such lease as security for a debt. (p. 487.)

LEASE-Assignments of-Priority.-As between two recorded assignments of the same lease, the one first executed has priority. (p. 488.)

[ocr errors]

un.

Stevenson & Butzel, for the complainants.
Walker & Spaulding, for the appellants.

348 MOORE, J. This is a bill filed by the assignees of a lease to have it sold in satisfaction of the lessee's indebtedness to them secured by the assignment. The circuit judge granted a decree according to the prayer of the bill of complaint. The case is brought here by appeal.

The terms of the lease as to assignments and transfers of the lessee's interest without the consent of the lessor will be referred to later. The complainants’ assignment was not consented to by the lessor. The main question in the case is on the validity of this transfer, without consent, against a subsequent transfer, made with the lessor's consent. The defendants are the personal representative of Mr. Parker, the lessor; Nr. Michell, the lessee; the members of the firm of A. Ives & Sons, bankers, to whom the assignment with consent was made by Mr. Michell; Mr. Harmon, the trustee in bankruptcy of Ives & Sons; and the Macdonald Clothing Company, who hold from Ives & Sons a sublease for substantially the unexpired. term of the lease. The lease is of a store building at the cor

is rights and privileges thereunder, to secure the inposted onges contemplated by the power of attorney. This was

neder, and their assignment had been delivered to them, and

z Wasch, 1898. On October 29, 1899, Mr. Parker, by letter,

che 1999, Michell, or the C. H. Michell Company, was

bere to the complainants in the sum of $20,000, or there-
sol the Michell interests desired to make arrangements
a erension of time for the payment of the $20,000 for
Fars

, and also to provide for the purchase on credit of
al guards from the complainants, and to secure them the
za of the debt then due, and also to secure them the
"At of such future indebtedness as should accrue from
za time by the further sale of goods to the C. H. Michell
a. On the second day of August, 1897, C. H. Michell
z.tered to the complainants

, through Elliott G. Steven-
s power of attorney. It provided that Stevenson could
22. execute an asignment of the lease in. question to

Brandegee whenever desired by them, “as security ** payment of any indebtedness owing by the said Carl H. 2 or the said C. H. Michell Company to said Crouse &

ner of State street and Woodward avenue, Detroit, and was made by Mr. Parker, party of the first part, to Mr. Michell, party of the second part, for a term of fifteen years, commencing February 1, 1895. The material provisions of the lease are as follows: "That all understandings or agreements made between the said above parties are to be void unless in writing; that the party of the second part will not assign nor transfer this lease, or sublet said premises, or any part thereof, without the written consent of said party of the first part.” In an earlier part of the lease it is "provided that, in case any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part, his certain attorney, heirs, representatives, and assigns, to re-enter and repossess the said premises, and the said party of the second part, and each and every other occupant, to remove and put out."

On August 2, 1897, Mr. Michell, who was engaged in both the clothing and grocery business, organized a corporation to 349 conduct the clothing business, under the name of the C. H. Michell Company, in which he held nearly all the stock. This company carried on this business in the premises covered by the lease from its organization until October, 1899, when it suspended business, and its stock was sold out and removed. Mr. Michell also organized a corporation under the name of the Michell Table Supply Company, to carry on the grocery business, in which he held nearly all the stock. This company occupied a portion of the premises in question from October, 1897, until shortly before the building was sublet by the defendants Ives to the Macdonald Clothing Company, in March, 1900. There was no written agreement between Michell and either of these corporations regarding their occupation of the Parker premises, except it was understood at the time of the organization of the clothing company that it was to occupy and stay in that store. During the business existence of the clothing company, the rent of the premises was paid to Parker by its checks. Mr. Parker receipted for this rent in each case to Mr. Michell individually. He knew that the two corporations were in occupancy. It does not appear that he knew anything of the terms on which they occupied. He also knew that large sums of money were expended by these two companies to fit the premises for their business.

The complainants sold large quantities of merchandise to C. H. Michell and to the C. H. Michell Company. On the 2d

and Stevenson was given all the power and au-
ay her Michell had himself in the premises. The power
blend upin Stevenson, to use the language of the assign-
a isel, “is conferred for the purpose of authorizing and
rering him to execute an assignment of the lease,
per with all rights and interests of the said Michell under
2003, to be held and used by the said Crouse & Brandegee
a security for the payment of any sum of money that said

1. Wich shall owe to the said Crouse & Brandegee.” On
1 te bere day the original lease was delivered by Michell to
se merlainants herein, through their attorney and agent,

17 G. Stevenson, and this original lease, from that day to

best neter been out of the control and possession of the 1. Warth, 1998, Mr. Stevenson, under this power of attorney, ,

and conveyed to the complainants the lease, and all

nor was it filed as a chattel mortgage. On October 15.398, Hr. Stevenson notified Mr. Michell of the assignment. Tenker 16, 1899, after the rights claimed by and under * Sons in the lease had accrued, if they had any there1 's had taken possession under it, Mr. Stevenson gave writ2 epice to Hir. Parker and to Ives & Sons that an assign

of the lease had been made by Michell to the complainants

Am. St. Rep., Vol. 97–31

of August, 1897, Michell, or the C. H. Michell Company, was
indebted to the complainants in the sum of $20,000, or there-
abouts, and the Michell interests desired to make arrangements
for an extension of time for the payment of the $20,000 for
three years, and also to provide for the purchase on credit of
additional goods from the complainants, and to secure them the
payment of the debt then due, and also to secure them the
payment of such future indebtedness as should accrue from
time to time by the further sale of goods to the C. H. Michell
Company. On the second day of August, 1897, C. H. Michell
350 delivered to the complainants, through Elliott G. Steven-
son, a power of attorney. It provided that Stevenson could
and should execute an assignment of the lease in question to
Crouse & Brandegee whenever desired by them, "as security
for the payment of any indebtedness owing by the said Carl H.
Michell or the said C. H. Michell Company to said Crouse &
Brandegee," and Stevenson was given all the power and au-
thority that Michell had himself in the premises. The power
conferred upon Stevenson, to use the language of the assign-
ment itself, "is conferred for the purpose of authorizing and
empowering him to execute an assignment of the lease, .
together with all rights and interests of the said Michell under
the same, to be held and used by the said Crouse & Brandegee
as security for the payment of any sum of money that said
C. H. Michell shall owe to the said Crouse & Brandegee.” On
the same day the original lease was delivered by Michell to
the complainants herein, through their attorney and agent,
Elliott G. Stevenson, and this original lease, from that day to
this, has never been out of the control and possession of the
complainants.

In March, 1898, Mr. Stevenson, under this power of attorney, assigned and conveyed to the complainants the lease, and all Michell's rights and privileges thereunder, to secure the indebtedness contemplated by the power of attorney. This was not recorded, nor was it filed as a chattel mortgage. On October 10, 1898, Mr. Stevenson notified Mr. Michell of the assignment. On October 16, 1899, after the rights claimed by and under Ives & Sons in the lease had accrued, if they had any thereunder, and their assignment had been delivered to them, and they had taken possession under it, Mr. Stevenson gave written notice to Mr. Parker and to Ives & Sons that an assignment of the lease had been made by Michell to the complainants in March, 1898. On October 27, 1899, Mr. Parker, by letter,

Am. St. Rep., Vol. 97–31

[ocr errors]
« ZurückWeiter »