HOOKER, J. Hughes, the petitioner, is the purchaser of the premises in controversy from Clink, who bought them from the state, said lands having been bid in for the state for the tax of 1893. The auditor's deed was issued to Clink on July 27, 1897, shortly before he deeded to Hughes. On September 20, 1897, application was made by Hughes to the court, which rendered the decree for a writ of assistance, to enable him to obtain possession. The defendant, Jordan, purchased the lands from Kelley, by contract dated April 2, 1897. Kelley had possession from April, 1890, under a contract. The defendant alleged in his answer, and offered to prove, that, after the issue of the deed from the auditor general to Clink, Kelley tendered an amount equal to the taxes of 1893 and 1896 to the auditor general, and demanded a deed; that no demand for payment of the tax of 1893 was made by the township treasurer of Kelley, as provided by section 46 of the tax law of 1893, although said treasurer knew that Kelley claimed to own the land, and had paid the tax for 1892 to him; that no attempt was made by the township treasurer to collect the tax from the personal property of said Kelley, which might have been done; and that the deed was void for the further reason that it issued without payment of the tax of 1896. which was at that time a lien upon the premises, and which is still unpaid. The answer concluded with a prayer "that the decree be reopened and vacated, and a rehearing granted, and defendant allowed to show what portion of the tax for which the land was sold is illegal and void, and that the sale and deed be declared void, and defendant be allowed to pay such taxes as are legal. The court did not permit such proof to be made, denied a rehearing, and ordered the writ of assistance to issue as prayed. Most of the questions raised relate to irregularities anterior to the decree under which the state purchased the land, and these are covered by the recent cases of Cole v. Shelp, 98 Mich. 58, 56 N. W. 1052; Muirhead v. Sands (Mich.) 69 N. W. 826; Turton v. Dumphey (Mich.) 71 N. W. 527; Turner v. Hutchinson (Mich.) 71 N. W. 514; and Auditor General v. Sparrow (decided April 5. 1898) 74 N. W. 881. The following questions are, however, open upon this record, viz.: (1) Whether the circuit court had jurisdiction in the tax proceedings under which the state purchased; (2) whether the proceedings subsequent to decree were void; (3) whether the purchase by Clink of the state's title was accompanied by payment of the tax of 1896, and, if not, whether that fact rendered the deed void; (4) whether a writ of assistance may be issued in case the petitioner's title is sustained; (5) whether it should be denied, and a rehearing in the original tax case granted. tions by saying that there is nothing in the testimony offered which tended to show a want of jurisdiction in the original proceedings, the questions presented being within the principles recognized in the cases herein before cited. Whether Clink should have paid the tax of 1896, when he bought the state title, involves a question of fact. It does not appear when the money was paid and title purchased, though from the defendant's brief we infer that it was some time before the deed was issued, and perhaps before the auditor general was advised that the land was returned to the county treasurer as delinquent, and possibly before such return. Inasmuch, however, as the answer alleges a violation of section 84 in that regard, the proof should have been taken, unless we are to say that the failure to pay such tax would not render the deed void. It may be said that, the title being in the state, others have no interest in the amount received by the state for its title, and that subsequent purchasers for value may rely upon the title conveyed by the state. Here, however, the petitioner relies upon a quitclaim deed, and is therefore on no better footing than his grantor; and, as will be seen by section 85, the owner may be interested in having subsequent taxes paid, and it may also happen that he has himself applied to purchase the lands, offering to pay all taxes and charges required by law to be paid by the purchaser. That is said to have been done in this case. The auditor general has no authority, under section 84, to sell and deed state lands. except upon receiving the price required by law, and this the purchaser is bound to know. The taxes become a lien upon the land early in December, a fact that is known to the auditor general, and of which the purchaser must take notice. Before the auditor general is authorized to part with the title of the state, he must be paid all taxes which remain a lien upon the land. After the time that taxes have become a lien, both purchaser and auditor general are aware that taxes have become due and payable which have not been returned. The purchaser can procure and the auditor general may require evidence that they have been paid, if such is the fact. It may be said that this imposes onerous burdens upon the purchaser, but they are not so serious as to justify the disregard of an unambiguous requirement of the statute (section 84). If this was not done, and such taxes remained a lien on the land when the deed was made, the title was not conveyed to Clink, and the right of others who might comply with the law to purchase was not cut off. As we have no means of determining the fact (proof being excluded upon this point), the order must be reversed, and the cause re manded for a rehearing, with costs to the We may dispose of the first of these ques- appellant. The other justices concurred. DETROIT FIRE & MARINE INS. CO. v. WOOD et al. (Supreme Court of Michigan. July 18, 1898.) TAXATION SALES-IMPEACHMENT- REPORT REDEMPTION-PURCHASE FROM STATE. 1. Under Laws 1893, Act No. 206, § 70, providing that no tax sale shall be set aside after confirmation except where the taxes were paid or the property was exempt, a sale once confirmed cannot be set aside because of the certificate being dated as of the first day of sale, negativing the presumption of compliance with the provision of said section that any land not sold shall be passed over, and on the succeeding day, or before the close of the sale, be reoffered, and, if then not sold, shall be bid in by the county treasurer. 2. Under Laws 1893, Act No. 206, § 70, providing that, as soon as tax sales are confirmed, the county treasurer shall report same to the auditor general, 10 days is not an unreasonable time to take in making such report. 3. The owner of land bid in by the state for taxes, after expiration of the time for redemption, paid the amount necessary to redeem, and also the subsequent year's taxes to the county treasurer. The auditor general ruled that redemption could not be made, but the payment of the subsequent taxes was not refunded, and on application he sold the land to a third person, paying the amount of the state's bid. Held, that he should have treated the effort of the owner to redeem and pay subsequent taxes as one transaction, and wholly unavailing, and should have required the purchaser to pay the subsequent taxes, failing which his deed was void. Appeal from circuit court, Ingham county, in chancery; Rollin H. Person, Judge. Petition by the Detroit Fire & Marine Insurance Company against Eugene B. Wood and the auditor general to set aside a tax deed by the state, and apply redemption money to the purchase of the land by the original owner. There was a decree for defendants, and petitioner appeals. Reversed. Moore & Goff (Edward Cahill, of counsel), for appellant. Charles W. Nichols (A. A. Ellis, of counsel), for appellee Wood. MONTGOMERY, J. March 16, 1891, Frank S. Bagg and Eva Bagg mortgaged to the Detroit Fire & Marine Insurance Company the parcels of land described as situated in the city of Lansing, county of Ingham, and state of Michigan, and described as the "west ninety-nine (99) feet of lot number four (4), and the east eleven (11) feet of lot number five (5), of block number one hundred and four (104) of the city of Lansing." Said mortgage was foreclosed, and the petitioner (mortgagee) became the owner of the premises, April 2, 1895. Under date of March 27, 1895, H. J. Bond, treasurer of Ingham county, where the lands aforesaid were situated, wrote the following letter of information to W. A. Moore, who was president of the petitioner corporation, in response to an inquiry asking for a statement of the unpaid taxes for 1891 and 1892: "County Treasurer, Ingham County, H. J. Bond, Treasurer. Mason, Mich., March 27th, 1895. Dear Sir: Inclosed please find statement of unpaid taxes as requested, interest computed for payment. Subdivision of section west three-fifths lot (4) and east (11) feet of lots five and six (5), (6), block (104), tax for 1891 and 1892, $342.60. The above is the amount if paid this month or next. Yours, respectfully, H. J. Bond, Co. Tr." And again wrote Mr. Moore, under date of April 8, 1895: “County Treasurer's Office, H. J. Bond, Treasurer. Mason, Mich., April 8th, 1895. W. A. Moore, Detroit, Mich.-Dear Sir: Inclosed please find receipts for redemption of '91 and '92 taxes. The city treasurer of Lansing has not made his returns to me yet for the 1894 taxes. Yours, respectfully, H. J. Bond, Co. Tr." The certificate of redemption for taxes of 1891 was as follows: "State Bid. County Treasurer's Redemption Certificate: I hereby certify that the sums stated below are due for the redemption of the following described tracts of land, sold for taxes assessed in the county of Ingham for the year 1891, sales book number (54). Description: West (93) feet, lot (4), and east (11) feet, lot (5), of block (104), city of Lansing. State tax, $10.35; interest on state tax, $1.44; collection fee, $3.60; expense, $68; county tax, $15.55; interest on county tax, $2.18; other taxes, $64.20; interest on other taxes, $8.97; amount of bid, $106.97; total bids, $106.97; interest from December 3rd, 1894, to April 10th, 1895, five months, at eight per cent. per annum, $3.53; aggregate, $110.50. Given under my hand, this 10th day of April, A. D. 1895. H. J. Bond, County Treasurer." "$110.50. County Treasurer's Office, Mason, Mich. April 10th, 1895. Received of William A. Moore, of Detroit, the sum of $110.50 in full of the above. H. J. Bond, Co. Tr." Countersigned: "James Blackmore, County Clerk." The certificate of redemption for taxes of 1892 was as follows: "State Bid. No. 214. County Treasurer's Redemption Certificate: I hereby certify that the sum stated below is due for the redemption of the following described tracts of land, sold for taxes assessed in the county of Ingham for the year 1892, sales book No. 103. Description: W. 99 ft. lot (4), and E. 11 feet lot (5), block 104, city of Lansing. State tax, $6.67; interest on state tax, $0.94; collection fee, $6.57; expenses, $0.64; county tax, $9.63; interest on county tax, $1.35; other taxes, $148; interest on other taxes, $20.72; amount of bid, $194.52; total bids, $194.52; interest from December 3d, 1894, to April 10th, 1895, five months, at 8 per cent. per annum, $6.48; aggregate, $201.00. Given under my hand, this 10th day of April, A. D. 1895. H. J. Bond, County Treasurer." "$201.00. County Treasurer's Office, Mason, Mich., April 10th, 1895. Received of William A. Moore, of Detroit, the sum of two hundred one dollars and cents, in full of the above. H. J. Bond, County Treasurer." Countersigned: "James Blackmore, County Clerk." The county treasurer made an entry on the tax record for 1893 immediately after the description of the premises sold: "William A. Moore, Detroit, Michigan, redeemed west (99) feet, lot (4), and east (11) feet, lot (5), block (104), $110.50. April 10th, 1895." A triplicate of the redemption certificates for taxes of 1891 and 1892 was sent to the auditor general by the county clerk about May 1, 1895. The following copy letter of the auditor general was offered in evidence: "A. J. P. June 20th, 1895. Ingham County Treasurer, Mason, Mich.-Dear Sir: We return herewith redemption certificate number 267. The description contained therein is not subject to redemption, but is held by the state, and is subject to sale as state tax land. Very respectfully, Stanley W. Turner, Auditor General." This letter of the auditor general was not received by the county treasurer. The first that the county treasurer knew that the auditor general would not accept the redemption certificate was near August 20, 1895 (cannot give exact date), when defendant Wood came to his office at Mason, Mich. He was surprised, and wrote W. A. Moore as soon as Wood went away. About August 20, 1896, defendant Wood went to the office of H. J. Bond, county treasurer at Mason, and wanted to look at the tax record for the sales of 1893 (taxes of 1891). After looking at the entry, the county treasurer testified that he said: "I have just made application to pay that at the auditor general's office. There is no harm done yet. I see it is paid. So, when I go back, I will withdraw my money." At that conversation defendant Wood told the county treasurer he had not received his deed. Defendant Wood testified that he said: "If I am obliged to, of course I will have to take my money back." The certificate to the auditor general was dated December 4, 1893, which was the day for the sales to commence, being the first Monday in December. On the 21st of August, 1896, Wood received a deed of the land from the auditor general, having applied for the same on August 11, 1896. This petition was filed to have the deed set aside, and to have the money remitted by Mr. Moore to the county treasurer applied towards a redemption or purchase of the land by the original owner, the insurance company. Three grounds are urged: First, it is claimed that the proceedings are irregular, in that it does not appear by the report of sale that the lands were bid off to the state at a time when the county treasurer had the right to make sale to the state; second, that the report of sale was not filed within the time required by law; and, third, that the transactions of the attempted redemption should be treated as an application to purchase. 1. The report to the auditor general of the sale of the land is dated December 4, 1893, which was the first date of sale. Section 70 of the tax laws (Act No. 206 of 1893) provides that, "if any parcel of land cannot be sold for taxes, interest and charges, such parcel shall be passed over for the time being and shall on the succeeding day, or before the close of the sale be re-offered and if on such second offer or during such sale the same can not be sold for the amount aforesaid the county treasurer shall bid off the same in the name of the state." And it is urged that the date of the certificate as to the first date of the sale negatives any presumption that the provision of the statute was complied with. Counsel for defendant calls attention to a clause of the same section providing that "the sale and all proceedings thereon shall be the same as if made on the first day fixed therefor," and urges that this provision justifies dating all the sales as of the first day. There is force in the petitioner's contention, and it is doubtful if the provision last quoted was intended to authorize a dating of the proceedings not according with the facts. The chief purpose of this provision was, as we construe it, to fix a time from which the year of redemption provided in section 74 will begin to run. But, however this may be, the sale was reported to the court and confirmed. Section 70 provides that no sale shall be set aside after confirmation except in cases where the taxes were paid or the property was exempt from taxation. Counsel for the petitioners raises the question whether the general exercise of equity powers can be legitimately restricted by such a provision. We need not affirm or deny the legislative power in the premises. We think the irregularity ought not to avail after confirmation, even if the power of the court is not restricted by this provision. The decree and sale under it are ordinarily final, and, if the petitioner has in this case been subjected to any wrong, it does not arise out of any irregularity attending the sale. 2. Section 70 of the law provides as follows: "As soon as sales are confirmed, the county treasurer shall make reports of the same to the auditor general." The report was received at the auditor general's office January 10, 1894, some 10 days after the sale stood confirmed. No precise time is fixed for making this report. A reasonable time must of necessity be allowed for making this report, and we think the time taken in the present case not unreasonable. 3. The main question discussed by counsel In this case is not free from difficulty. The payment made by Mr. Moore to the county treasurer, and by him forwarded and credited to the auditor general, was intended to be used to accomplish two things: First, the redemption of the land from the sale for taxes of 1891; and the payment of the taxes of 1892. A sum was remitted, sufficient, as was supposed, to accomplish this purpose. Both the county treasurer and Mr. Moore were mistaken as to the right to redeem from the 1893 sale. The whole transaction was reported to the auditor general, and he, without setting aside the attempt to redeem and pay the taxes of 1892, preferred to treat the payment to the county treasurer as insufficient to entitle the petitioners to a deed on the 1893 sale (as it probably was not). The result, therefore, was that not only was the intent and desire of the petitioner not accomplished, but, by treating the payments as separate transactions, the payment of the taxes of 1892 not only failed to relieve the lands of the petitioners as intended, but made it possible for Mr. Wood to become purchaser on payment of $132.27, instead of paying the whole tax due, as he would have been bound to do if the transaction between the petitioner and the county treasurer had been treated as an entirety, and the whole payment declined. The inequity of such a result is apparent. True, the county treasurer had not the right to accept redemption of the lands after the 1893 sale, and he did have the right to accept payment of the 1892 taxes; but Mr. Moore, as was well known, did not intend or attempt to pay this tax to discharge a burden resting on the lands of the state. The state then had the benefit of $210 of petitioner's money, which it was not entitled in equity to retain. Before Wood took his deed, he had notice of the facts sufficient to put him on inquiry; and not only is this true, but it is also true that it is only by reason that the state has made an application of the money of petitioner not intended by him that Mr. Wood was enabled to obtain a deed of the land for the small sum paid. We think it is only equitable to hold that the auditor general should have treated the effort of Mr. Moore as wholly unavailing, and that he should have required payment of the taxes of 1892 as a condition to deeding the lands to Wood. Wood, having paid only a portion of the amount due, was not entitled to a deed. See Hughes v. Jordan (decided at the present term) 76 N. W. 134. The decree will be reversed, and the deed to Wood set aside, on payment of the amount paid by him, with interest. The other justices concurred. 1. Pub. Acts 1893, Act No. 206, § 72, providing that courts may put the purchaser under a tax deed in possession of the premises by writ of assistance, does not violate Const. art. 6, § 27, which provides that the right of jury trial shall "remain." 2. Pub. Acts 1893, Act No. 206, §§ 62, 66, providing for the filing of a petition by the auditor general for the sale of land for delinquent taxes, and for service of notice thereof by publication, giving a court of chancery jurisdiction to determine all questions arising thereon, and to decree a sale do not deprive any person of property without due process of law. 3. A rule of court cannot operate in conflict with a statute. 4. Under Laws 1893, Act No. 206, § 70, providing that, as soon as sales are confirmed, the county treasurer shall make full report thereof ance. LONG, C. J. Petition for writ of assistPetitioner became a purchaser of the lands in controversy at the annual tax sales in 1896, under a decree made in the circuit court, in chancery, for Marquette county. He petitioned for a writ of assistance; and the respondents, in answer to an order to show cause, replied: (1) That it was an attempt to eject respondents from their possession of the property without their having had their day in court before a jury, and in contravention of section 27 of article 6 of the constitution of this state; (2) that the court of chancery acquired no jurisdiction to render a decree against the land because no personal service of notice was given to the owner of the land, though he resided within said county, and that the law providing for publication of notice, and thus attempting to give the court jurisdiction, is in contravention to the fourteenth amendment to the constitution of the United States; (3) that the decree had not been enrolled before sale; (4) that the county treasurer did not make a report of sale to the auditor general within the time prescribed by the tax law; (5) that the owner of the land had personal property from which the tax might have been collected. On the coming in of the answer, the court below granted the order issuing the writ of assistance. The questions raised by respondents in the first and second points above stated are fully discussed and decided adversely to respondents' contention in Ball v. Copper Co. (decided at the present term) 76 N. W. 130. We think the proposition that no sale could be made until after enrollment has no force. The statute prescribes a time for the sale to take place, which precludes the application of How. Ann. St. §§ 6648, 6649. Chancery rule 24 cannot overrule the tax law, which provides when the deeds may issue. See, also, Hochgraef v. Hendrie, 66 Mich. 561, 34 N. W. 15. The point that the county treasurer did not make his report to the auditor general in time is decided contrary to the view of counsel in Insurance Co. v. Wood (decided at the present term) 76 N. W. 136. In the present case it appears that the time taken by the treasurer was not unreasonable. The order below must be affirmed. The other justices concurred. 1. Plaintiff's wife, with a shawl over her head, was driving a covered milk wagon, with doors at the side, and a small glass window at the back. She looked both ways before and after crossing an electric car track in an empty street and sparsely-settled neighborhood, and saw no car within half a mile, and proceeded parallel with the track on a rutted pavement, nine feet wide, the wheels following the ruts. She had driven over the street frequently, and knew that cars passed at intervals of half an hour, but thought she was far enough from the track to be safe. She heard a bell, and attempted to turn out, but her wagon was struck at once by a car from behind. Held not to show contributory negligence as a matter of law. 2. It was not error to charge that she had a right to cross the railroad, and to drive down the track exactly as she did, and that, if she attempted to turn out on the sounding of the gong, she was blameless, and that the court thought there was no contributory negligence in driving down the street until she heard the bell, but that it was a matter for the jury to determine, and that the same rule applies to a street car as to wagons in a crowded street,that it must wait its opportunity to pass, and the motorman must slow down and get control of his car, and manage it as well as a prudent man would,-where the jury was also charged that, if she tried to drive in front of the car, as claimed by the company, and it was so near that it could not be stopped, there was no cause of action. Error to circuit court, Bay county; Andrew C. Maxwell, Judge. Action by Napoleon Manor against Bay Cities Consolidated Railway Company. There was a judgment for plaintiff, and defendant brings error. Affirmed. T. A. E. & J. C. Weadock, for appellant. H. M. Ready (Simonson, Gillett & Courtright, of counsel), for appellee. MOORE, J. This is one of two cases, both by agreement tried as one, growing out of a collision between an electric car belonging to defendant, and a milk wagon in charge of the wife of plaintiff. A judgment was recovered of $81, from which defendant appeals. Defendant's road is an electric road. The wife of the plaintiff was driving, a milk wagon in the village of Essexville. She had occasion to cross the track from the south. She was riding in & covered wagon, which had doors at the sides, and a small glass window at the back. The weather was cold, and she had her shawl over her head and ears. According to her testimony, before erossing the track, she stopped the wagon, opened the doors, and looked both ways. She could see to the west a half mile. She saw no car, and crossed the track, and turned to the east, on the north side of the track, and parallel with it. The street on the south side of the track was sandy and soft, and for that reason was not traveled to any extent. On the north side of the track, for about nine feet from the track, it was macadamized with broken stone, which was worn smooth only in two narrow parallel tracks, where the wheels of vehicles ran. Mrs. Manor drove her horse so the wheels of the wagon would follow in these beaten portions of the road. She was familiar with this street, having driven on it frequently. She says she supposed she was driving far enough away from the track so that a car coming from the west could pass her without hitting the wagon. There were two cars run over this line. They passed at intervals of one half hour each. Mrs. Manor says she looked west as she crossed the track, and saw no car. She had driven east about 300 feet when she heard a bell, and instantly attempted to guide her horse away from the track, when at once her wagon was struck by the car which had overtaken her, and the injury was done. When the testimony of the plaintiff was all in, the court was asked to direct a verdict for the defendant, upon the ground that plaintiff was guilty of contributory negligence. The court refused to do so, and this is said to be error. We cannot agree with counsel in this claim. It is true, the defendant must run its cars upon the rails, and cannot turn out upon the street, but it has no exclusive right to the use of the street. The plaintiff also had a right to drive her vehicle in the beaten portion of the road, and to act as a reasonable and prudent person would under like conditions. She might dress against the inclemency of the weather. The motorman could see her vehicle for a half mile. He had notice of its proximity to the track, and of the danger to it if he let his heavy car run against it. It is true, he says in his testimony that he rang his gong, and saw Mrs. Manor turn away from the track, and he supposed he could pass her safely, when she turned back into the dangerous position again, and was hit. Testimony was offered supporting and rebutting the testimony of the motorman; but it is perfectly evident from the record that but a moment's delay and a little more care on the part of the motorman would have avoided the injury. When the motion was made, the defense had not introduced any testimony, and we do not think it could be said as a matter of law that, under the facts then disclosed by the record, the defendant was excused from any lability because of the injury. After this motion was overruled, defendant put in testimony which, if believed by the jury, made a complete defense. Testimony was introduced to rebut this defense. The case was submitted to the jury in a charge which is claimed by defendant to be erroneous. The record does not disclose that any written requests were preferred by counsel for defendant. So much of the charge as counsel think necessary for the purpose of making their point is cited in the brief. If |