ORONDE SHAWN MANSON V HAROLD STEHLIK
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STATE OF MICHIGAN
COURT OF APPEALS
ORONDE SHAWN MANSON,
UNPUBLISHED
March 22, 2002
Plaintiff-Appellant,
v
HAROLD STEHLIK and JERRY E. STEHLIK,
No. 227504
Wayne Circuit Court
LC No. 98-839563-CH
Defendants-CounterplaintiffsAppellees.
Before: O’Connell, P.J., and White and Cooper, JJ.
PER CURIAM.
Plaintiff Oronde Shawn Manson appeals as of right from the May 3, 2000, opinion and
order of the trial court denying his motion for summary disposition and granting judgment in
favor of defendants Harold and Jerry E. Stehlik under MCR 2.116(I)(2) in this action to quiet
title. We affirm.
The underlying facts of this action are not complex or disputed by the parties. Plaintiff’s
parents, Herman and Ella Mae Manson, purchased the subject property, 9569 Asbury Park,
Detroit, in March 1978. This deed was recorded with the Wayne County Register of Deeds. In
December 1984, Herman and Ella divorced. The December 14, 1984, default judgment of
divorce provided that Ella retain custody of plaintiff, who was born September 3, 1975. As part
of the property settlement, Ella also was awarded the martial home, the subject property in the
instant appeal, “free and clear of any claims of [Herman Manson].” The parties do not dispute
that the divorce judgment awarding Ella the property was not recorded with the Wayne County
Register of Deeds.
Ella subsequently died intestate on February 15, 1987. Ella was not married when she
died in 1987, and plaintiff, a minor at the time of her death, was her sole heir. Documents filed
in the Wayne County Probate Court and filed in the record in the instant case indicate that Ella’s
sister, Elnora Walker, was appointed administrator of the estate and plaintiff’s conservator. As
relevant to the present appeal, plaintiff inherited the property at 9569 Asbury Park in Detroit.
However, it does not appear from the record that the documents concerning the probate of Ella’s
estate were filed with the Wayne County Register of Deeds.
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The taxes on the subject property became delinquent in 1990. In 1993, defendant Jerry
Stehlik purchased the property from the state at tax sale for the amount of the delinquent taxes,
$161.63. A tax certificate was issued to Stehlik on April 19, 1994, MCL 211.71, and a tax deed
was issued to Stehlik on August 24, 1994, MCL 211.72.1 Plaintiff does not challenge the
forfeiture of the property to the state, or the subsequent sale to Stehlik. See, generally, Smith v
Cliffs on the Bay Condominium Ass’n, 463 Mich 420, 425; 617 NW2d 536 (2000). Instead,
plaintiff’s sole argument on appeal is that he was not properly served with notice of his right to
redeem his interest in the property in accordance with MCL 211.140.
Jerry Stehlik provided the Wayne County Sheriff with a notice of redemption to be
served on Herman and Ella Manson, as well as the “owner/occupant” of the subject property on
October 3, 1994. The parties agree that at the time Ella and Herman, as well as any occupants of
the property, were to be served with the notice of redemption, plaintiff was residing at the
property with Herman. On October 6, 1994, a notice of return was filed with the Wayne County
Clerk, indicating that Herman Manson was personally served with the notice of redemption on
October 4, 1994. However, an undated letter from the sheriff to Jerry Stehlik indicated that
service was not effectuated on Ella Manson, on the basis of information “per her husband,
Herman Manson” that she died in 1987. After Jerry Stehlik sent an October 12, 1994, letter to
the sheriff indicating that an “extended search for the whereabouts” of Ella Manson was
unsuccessful, the sheriff provided Stehlik with a return of failure of service on October 31, 1994.
This indicated that the sheriff, “after careful inquiry,” was unable to ascertain the post office
address of Ella Manson.
An affidavit of publication in the lower court file reflects that defendants posted the
notice of redemption in The Legal Advertiser, a Detroit-area newspaper, on November 24,
December 1, 8, and 15, 1994. As relevant to this appeal, notice was directed to Herman and Ella
Manson, as well as the owner and occupants of 9569 Asbury Park. Because defendants did not
receive a response to their notice attempts, Jerry Stehlik sent a letter addressed to “Herman
Manson & or occupant” on July 12, 1995, advising that she was the record owner of the subject
property. In the letter, Stehlik advised that any parties residing in the home would need to
vacate, or make arrangements to stay longer. The parties do not dispute that following receipt of
this letter, Herman Manson entered into a lease agreement with Jerry Stehlik on August 11,
1995, for $300 a month. The lease agreement listed plaintiff as one of the occupants of the
premises. According to the record, plaintiff and Herman Manson resided at 9569 Asbury Park
under the lease agreement without incident until 1998, when defendants instituted an eviction
action in district court for the nonpayment of rent.
Plaintiff commenced the present action in Wayne Circuit Court on December 10, 1998,
seeking to quiet title to the property. In the complaint, plaintiff alleged that defendants failed to
properly notify him of his redemption rights. Plaintiff further alleged that because Ella Manson
was deceased, defendants were required to serve him with a notice of redemption as her heir.
According to the complaint, title was vested in plaintiff because defendants failed to conduct a
“careful inquiry” into the whereabouts of Ella’s heirs. In the remaining two counts of the three
1
MCL 211.71; 72 are to be repealed effective December 31, 2003. 1999 PA 123, § 4.
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count complaint, plaintiff sought an injunction to halt the proceedings in the district court, and
the return of rent paid by Herman Manson to defendants.2
On January 15, 1999, defendants filed a countercomplaint, seeking to quiet title. In the
countercomplaint, defendants alleged that plaintiff was properly served with the notice of
redemption and that absolute title vested in defendants once plaintiff failed to redeem his interest
in the property. After some discovery was conducted, plaintiff moved for summary disposition
under MCR 2.116(C)(8), (9), and (10) on January 14, 2000, arguing that he was not properly
served with notice of redemption.
After hearing argument on March 10, 2000, the trial court reserved its ruling until May 3,
2000. In a six-page written opinion, the trial court denied plaintiff’s motion for summary
disposition, indicating that it reviewed plaintiff’s motion pursuant to MCR 2.116(C)(10). The
trial court concluded that notice was properly given to plaintiff as an occupant of the subject
property because his father, Herman Manson, who also resided there, was served on plaintiff’s
behalf. Relying on this Court’s decision in Youngblood v DEC Properties, 204 Mich App 581;
516 NW2d 119 (1994), the trial court recognized that, as plaintiff’s father, Herman Manson was
likely to come into contact with plaintiff and advise him that he was served with notice of his
redemption rights. Judgment was then granted in favor of defendants pursuant to MCR
2.116(I)(2).
This Court reviews de novo a trial court’s grant of summary disposition. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought under MCR
2.116(C)(10) tests the factual sufficiency of a complaint. Maiden v Rozwood, 461 Mich 109,
120; 597 NW2d 817 (1999).
In evaluating a motion for summary disposition brought under this subsection, a
trial court considers affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable
to the party opposing the motion. Where the proffered evidence fails to establish
a genuine issue regarding any material fact, the moving party is entitled to
judgment as a matter of law. [Maiden, supra at 120.]
The trial court denied plaintiff’s motion for summary disposition, and entered judgment
in favor of defendants pursuant to MCR 2.116(I)(2). “‘Summary disposition is properly granted
[under this rule] to the opposing party if it appears to the court that that party, rather than the
moving party, is entitled to judgment.’” Gyarmati v Bielfield, 245 Mich App 602, 604; 629
NW2d 93 (2001), quoting Sharper Image v Dep’t of Treasury, 216 Mich App 698, 701; 550
NW2d 596 (1996).
Our analysis regarding whether plaintiff was properly served with notice of his right to
redeem his interest in the subject property following the issuance of a tax deed to defendants
2
In an order entered December 17, 1998, the trial court enjoined the 36th District Court from
hearing or adjudicating defendants’ claim against Herman Manson for nonpayment of rent.
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centers on a review of MCL 211.140. When defendants attempted to serve notice of the right to
redeem on interested parties in October 1994,3 this provision provided in pertinent part:
(1) A writ of assistance4 or other process for the possession of land the title to
which was obtained by or through a tax sale, except if title is obtained under
[MCL 211.131], shall not be issued until 6 months after there is filed with the
county treasurer of the county where the land is situated, a return by the sheriff of
that county showing service of the notice prescribed in subsection (2). The return
shall indicate that the sheriff has made personal or substituted service of the
notice upon the following persons who were, as of the date the notice was
delivered to the sheriff for service:
(a) The last grantee or grantees in the regular chain of title of the land, or of an
interest in the land, according to the record of the county register of deeds.
(b) The person or persons in the actual open possession of the land.
(c) The grantee or grantees under the tax deed issued by the state treasurer for the
latest year’s taxes then appearing of record in the registry of deeds.
(d) The mortgagee or mortgagees named in all undischarged recorded mortgages,
or assignments thereof of record.
(e) The holder of record of all undischarged recorded liens.
***
(4) If a person entitled to notice as prescribed in subsection (1) is dead, or if a
person’s estate is under control of a trustee or guardian, the notice may be served
upon the executor or administrator of the decedent’s estate, or upon the
decendent’s heirs if there is not an executor or administrator, or upon the trustee
or guardian of an incompetent person, with like effect as if served upon the
grantee, mortgagee, or assignee.
(5) If the sheriff of the county where the land is located makes a return that after
3
MCL 211.140 was subsequently amended by 1996 PA 476, effective December 26, 1996.
Moreover, the Legislature has provided that this section is to be repealed, effective December 31,
2006. 1999 PA 123 § 5.
4
As our Supreme Court observed in Ramsdell v Maxwell, 32 Mich 285, 287 (1875):
A writ of assistance is the regular process for carrying out a decree of
possession, and lies on foreclosure sales. Its object is to compel parties who are
bound by a decree to give up the possession which by the decree and sale under it
they have become estopped from further asserting, and when they have thus
become tenants at sufferance.
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careful inquiry the sheriff is unable to ascertain the whereabouts of the post-office
address of the persons upon whom notice may be served as prescribed in this
section [service of the notice shall be made by publication]. The notice shall be
published for 4 successive weeks, once each week, in a newspaper published and
circulated in the county where the land is located, if there is one. If no paper is
published in that county, publication shall be made in a newspaper published and
circulated in an adjoining county, and proof of publication, by affidavit of the
printer or publisher of the newspaper, shall be filed with the county treasurer.
This publication shall be instead of personal service upon the person or persons
whose whereabouts or post-office address cannot be ascertained as prescribed in
subsection (3).
(6) Service may be made upon a resident of this state by leaving the notice at that
person’s usual place of residence with a member of that person’s family of mature
age, and upon a non-resident of this state by serving the notice on the nonresident
personally while in this state and the return in this case shall be made by the
sheriff of the county in which service was made.
***
(8) Service as prescribed in this section may be made by a sheriff, undersheriff,
or deputy sheriff. The sheriff shall, in the return of service, state the time when
the notice was delivered, to the sheriff for service, and the return shall be prima
facie evidence of the facts stated in the return.
As our Supreme Court, considering a predecessor to § 140 of the GPTA, observed in
Winters v Cook, 140 Mich 483, 487; 103 NW 869 (1907):
This section was designed as a relief to owners of delinquent tax lands,
and to prevent the divestiture of their titles, beyond redemption, through
ignorance, inattention, or carelessness. It plainly indicates that the purchaser is
expected to give an express notice, wherever practicable, with a six-months
interval thereafter, within which the land may be redeemed. It imposes upon the
purchaser the obligation of good faith, and an earnest effort to ascertain the owner
and his whereabouts, and an honest attempt to give him actual notice and the
statutory opportunity. Any effort to avoid it through fraud or collusion, or
intentional omission to comply with the spirit of the statute, should not be
permitted to be effective, if the courts can legitimately avoid it.
Section 141 of the GPTA “provides a right of redemption that lasts for six months after
the tax sale purchaser complies with the notice requirements of § 140 of the GPTA.” Ottaco, Inc
v Kalport Development Co, 239 Mich App 88, 91; 607 NW2d 403 (1999). If proper notice is not
served pursuant to § 140, the statutory redemption period does not begin to run, id., and the tax
sale purchaser claiming title to the land holds the status of trespasser. Brousseau v Conklin, 301
Mich 241, 244; 3 NW2d 260 (1942); Huron Land Co v Robarge, 128 Mich 686, 687; 87 NW
1032 (1901). “Actual notice is not enough to satisfy the statute’s notice requirements.” Brandon
Twp v Tomkow, 211 Mich App 275, 284; 535 NW2d 268 (1995); see also Stein v Hemminger,
165 Mich App 678, 682; 419 NW2d 50 (1988). Until notice to redeem is served on all parties
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entitled to such notice, the right of redemption remains to all. GF Sanborn & Co v Richter, 176
Mich 562, 565; 142 NW 755 (1913).
As plaintiff correctly states in his brief on appeal, because a party with an interest in
property could be potentially divested of that interest, strict compliance with the tax sale
redemption provisions of MCL 211.140 is required. Halabu v Behnke, 213 Mich App 598, 606;
541 NW2d 285 (1995); Andre v Fink, 180 Mich App 403, 408; 447 NW2d 808 (1989).
“Substantial compliance with the statutory requirements in such matters is not sufficient.”
Stockwell v Curtis, 279 Mich 388, 392; 272 NW 717 (1937). Further, where a delinquent
taxpayer challenges a third-party purchaser’s title to the property acquired by way of tax sale, the
burden of showing compliance with the governing statutes falls on the third-party purchaser.
Dimondale v Grable, 240 Mich App 553, 568; 618 NW2d 23 (2000). In Griffin v Jackson, 145
Mich 23, 25; 108 NW 438 (1906), Justice Hooker observed that “[t]he courts are not hasty in
cutting off the rights of landowners whose lands have been sold for taxes . . . .” See also Pike v
Anderson, 136 Mich 414, 415; 99 NW 398 (1904) (“statutes providing for redemption are to be
liberally construed in favor of the redemptioner.”).
As an initial matter, plaintiff argues that defendants failed to properly serve him as an
heir to Ella Manson’s estate. As noted above, the tax sale redemption provision clearly provides
that where a party entitled to notice under subsection MCL 211.140(1) is dead, notice should be
provided to the executor or administrator of the estate, or the heirs of the estate if there is not an
executor or administrator. See White v Shaw, 150 Mich 270, 271; 114 NW 210 (1907); Clugston
v Rogers, 203 Mich 339, 343-345; 169 NW 9 (1918); McVannel v Pure Oil Co, 262 Mich 518,
522; 247 NW 735 (1933).
The parties do not dispute that when the Wayne County Sheriff served Herman Manson
with notice in October 1994, Manson communicated to the sheriff that Ella Manson had passed
away in 1987. During his September 1, 1999, deposition testimony, Harold Stehlik conceded
that he and his wife were informed that Ella Manson could not be served because she was
deceased. During his deposition Harold Stehlik also admitted that he and his wife did not
undertake further inquiry into Ella’s whereabouts after they were informed that she was dead, but
that before they were given such information they attempted to locate her by using the phone
book and Bressler’s, an address directory. According to Harold Stehlik, he and his wife assumed
that Herman Manson was Ella’s only heir because of the way the property was originally deeded
when Herman and Ella purchased it in 1978, and because they did not know that Herman and
Ella had divorced. Also, Stehlik noted during the deposition that he and his wife were aware,
presumably from a search of title, that Herman Manson had taken out a mortgage on the property
in return for financing in 1989 in his own name, two years after Ella passed away.
In support of his argument that defendants failed to properly provide him with notice as
an heir, plaintiff points to this Court’s decision in Richard v Ryno, 158 Mich App 513, 516; 405
NW2d 184 (1987). In Richard, the plaintiff provided the sheriff with a form notice directing that
notice be provided to “John H. Ryno & wife, Arvilla Marie Ryno (both deceased).” Id. at 516.
Rather than taking steps to ascertain the deceased owners’ heirs, the sheriff merely signed the
return, noting that service was not effectuated. Id. The trial court found that the deceased
owners’ ten children had actual notice of the plaintiff’s acquisition of the property, which
satisfied the tax sale redemption statute’s notice requirement. Id. This Court reversed, holding
that “the sheriff’s deputy’s actions in merely signing the return and not attempting to effectuate
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service [on the heirs] was not the exercise of good faith and diligence.” Id. at 517. Specifically,
the Court noted that the plaintiff was familiar with one of the defendants, and others lived in the
area and could have been located with reasonable inquiry. Id.
In reaching this conclusion, the Richard Court relied on the Supreme Court’s earlier
decision in Clugston, supra. In Clugston, the sheriff filed a return of notice indicating that after
careful inquiry, he was unable to locate the grantee named in the last recorded deed, or the
grantees’ heirs. Id. at 341. The Supreme Court concluded that the sheriff did not attempt to
locate the grantees’ heirs in good faith, where the record reflected that the grantees were
prominent in the Alpena community, and that the sheriff was well-acquainted with the grantees’
families, and any reasonable effort could have led to locating the heirs. Id. at 344.5
To the extent that plaintiff argues that defendants and the Wayne County Sheriff failed to
undertake a careful inquiry into the whereabouts of Ella Manson’s heirs after being informed that
she was deceased, this argument finds support in the case law. In the instant case, it is not in
dispute that after being informed that Ella Manson was deceased, defendants did not investigate
whether she had any heirs, and did not attempt to contact the administrator of her estate, given
their assumption that Herman Manson was her only heir. However, the facts in the present
appeal may be distinguished from those in Richard, supra, and Clugston, supra, because there is
no indication in the record that the sheriff was personally acquainted with plaintiff, or that Ella
Manson was a prominent figure in the community to the extent that locating her heirs would be a
simple task.6
5
As support for his argument, plaintiff also points to our Supreme Court’s decision in Hildie v
Eckhart, 203 Mich 346, 350; 169 NW 14 (1918). In Hildie, the grantee in the last recorded deed
in the chain of title of property in Ogemaw County resided in the Detroit area. Id. at 348. The
Ogemaw County Sheriff attempted to locate the grantee by undertaking a search in Detroit, and
by enlisting the aid of the Wayne County Sheriff. Id. at 349. As relevant to the present appeal,
the Hildie Court rejected the plaintiff’s argument that the sheriff’s return of notice should have
reflected that he was unable to locate the grantee’s heirs where the sheriff did not possess any
information that the grantee was deceased. Id. at 350. See also Mercer v Stephens, 185 Mich
290, 293-294; 151 NW 1032 (1915) (notice not required to be served on heirs where sheriff
unaware that grantee is deceased).
6
But see Chilton’s, Inc v Wilmington Apartment Co, 365 Mich 242, 247; 112 NW2d 434 (1961).
In Chilton’s, supra at 247, the plaintiff purchased the subject property from the Wilmington
Apartment Company, but did not record his deed. The tax sale purchaser provided notice to
redeem to the apartment company, but did not notify the plaintiff. The Chilton’s Court rejected
the plaintiff’s assertion that he was entitled to notice and that defendants were required to
undertake a “careful inquiry” to ascertain his interest.
The person or persons entitled to the notice of the tax sale must be determined in
accordance with the records showing the chain of title of the land in question in
the office of the register of deeds of the county where the property is located.
There is no requirement that the purchaser at the tax sale shall make service on a
party or parties not specified by the tax law. [Id. at 247.]
(continued…)
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In any event, we agree with the trial court in this case that notice was properly effectuated
on plaintiff, a party in open possession of the land in accordance with MCL 211.140(1)(b), by
serving his father Herman Manson. MCL 211.140(6). Thus, this case presents a somewhat
unique scenario, because the heir of the deceased grantee in the last recorded instrument in the
chain of title was also an occupant of the premises. It is well-settled in Michigan that a tax sale
purchaser must serve notice to those in actual open possession of the land. Otto v Phillips, 250
Mich 546, 547; 230 NW 940 (1930); Taskey v Paquette, 324 Mich 143, 148-149; 36 NW2d 876
(1949); US v Varani, 780 F2d 1296, 1303 (CA 6, 1986); see also Curry v Backus, 156 Mich 342,
344-345; 120 NW 796 (1909).
Further, MCL 211.140(6) provides that “service may be made on a resident of this state
by leaving notice at that person’s usual place of residence with a member of that person’s family
of mature age . . . .” See Merrill v Myers, 197 Mich 356, 360; 163 NW 954 (1917) (concluding
that service of the notice to redeem on the plaintiff’s wife was appropriate under predecessor to
MCL 211.140(6)). In Youngblood, supra at 583,7 this Court made the following observations
regarding the purpose of this statutory provision.
The purpose of this statute is to achieve notice. . . . [T]he relevance of ‘family’
does not pertain to blood or lineage, but rather to members of a household likely
to have contact with the person who is to be served. Thus, the Legislature’s
requirement that the person be of mature age. Again, the emphasis is not on the
origin of the relationship but the nature of the relationship and its likelihood to
guarantee contact between the one to whom notice is given and the one to whom
notice is due.
In the present appeal, the trial court concluded that defendants properly served plaintiff
with his notice to redeem by serving his father.
In the present case, service was made upon Plaintiff’s father. Plaintiff and
his father resided together at the home. The notice was voluntarily accepted by
Plaintiff’s father. Clearly, [Plaintiff’s father] would qualify as a person of mature
age and would be likely to come in contact with Plaintiff. Based on this, this
court is inclined to agree with Defendant[s] that notice was served upon both Mr.
Herman Manson and consequently, the Plaintiff.
On appeal, plaintiff argues that service was not properly effectuated on him by serving
his father on his behalf because defendants were unaware of plaintiff’s existence at the time
notice was served and did not specifically intend to serve him. In support of this assertion,
(…continued)
The Chilton’s Court went on to state that the plaintiff’s failure to properly record his deed
“subjected [the property] to the hazards of the situation resulting therefrom.” Id. at 248.
7
In Youngblood, supra at 582, the defendant served a copy of the notice to redeem on the
twenty-five-year-old daughter of the plaintiff’s fiancé that resided with the plaintiff. The issue in
Youngblood was whether the word “family” in the statute should be given a restrictive biological
definition. Id. at 582-583. This Court decided that it should not. Id. at 583.
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plaintiff points to the deposition testimony of Jerry Stehlik, in which she indicated that the
Stehliks were unaware that Ella and Herman Manson had a son with an interest in the property
until they entered into the lease agreement with Herman Manson. Plaintiff further argues that the
notice to redeem provision of the GPTA contemplates that a tax sale purchaser consciously and
deliberately serve notice on a specific, enumerated individual.
The plain language of MCL 211.140(1)(b) provides, in pertinent part, that “[t]he return
[of] service shall indicate that the sheriff has made personal or substituted service of the notice
upon the following persons who were, as of the date the notice was delivered to the sheriff for
service: [t]he person or persons in the actual open possession of the land.” Where the language
of a statute is clear and unambiguous, we must presume that it manifests the Legislature’s intent,
and further judicial construction is inappropriate. Herald Co v Bay City, 463 Mich 111, 117; 614
NW2d 873 (2000). In the instant case, there is nothing in the plain language of either MCL
211.140(1)(b) or MCL 211.140(6) that requires that the tax sale purchaser specifically intend to
serve an identified enumerated person. Consequently, we decline plaintiff’s invitation to read
into the statute a requirement that the Legislature did not intend. See Herald Co, supra at 121
(Courts do not have authority to impose requirements not found in the plain language of the
statute); In re Juvenile Commitment Costs, 240 Mich App 420, 427; 613 NW2d 348 (2000)
(“Nothing may be read into the statute that is not within the manifest intent of the Legislature as
gathered from the act itself.”).
In a related argument, plaintiff contends that service was not properly effectuated on him
because the return of service filed by the Wayne County Sheriff with the county treasurer does
not reflect that Herman Manson was served on plaintiff’s behalf. Indeed, a review of the return
of service filed by the sheriff regarding Herman Manson indicates that notice to redeem was
served on “Herman Manson, Occupant, 9569 Asbury Park, Detroit” and does not indicate that
Herman was served on plaintiff’s behalf. MCL 211.140(1) provides that “[t]he return [of
service] shall indicate that the sheriff has made personal or substituted service of the notice” on
the persons, who as of the date the notice was delivered to the sheriff, are in actual open
possession of the land. [Emphasis supplied.] In the instant case, the return of notice does not
indicate that the sheriff made substituted service on Herman Manson on plaintiff’s behalf.
However, we conclude that any deficiency with regard to the notice of return does not warrant
reversal of the trial court’s order.8
8
Although plaintiff raised this issue in his reply brief to defendants’ opposition brief to
plaintiff’s motion for summary disposition, the trial court did not address this specific argument
in its written opinion. However, relying on Dunn v Peck, 255 Mich 391, 394; 238 NW 224
(1931), which in turn cited Bradley v Williams, 139 Mich 230; 102 NW 625 (1905), the trial
court noted that “[t]here is no statutory requirement that . . . notice [to redeem] be personally
addressed to the one to be served.” In Dunn, the notice to redeem was addressed to “Will
Dunn,” but the plaintiff’s proper name was “William H. Dunn.” The Dunn Court found that the
notice to redeem was proper, concluding that where notice is properly served on the right person,
and where no one was misled, service, although slightly irregular, should be held valid. Dunn,
supra at 394.
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In Le Boeuf v Papp, 243 Mich 318, 321; 220 NW 792 (1928), the plaintiff argued that
substituted service by publication could not be made where the notice of return was deficient.
The return of service in that case failed to state the time the notice to redeem was delivered to the
sheriff for service. Our Supreme Court, relying on earlier cases, rejected this argument, and
made the following statement.
“Unless compelled to do so, courts should not so construe the [notice to
redeem] legislation as to make its provisions mandatory, and, so, applicable only
to cases where the returns of service show exact conformity with the statute
provisions. To do so would not only render the legislation abortive, but would
afford the delinquent taxpayer additional security against the collection, by the
State, of its revenues.” [Id. at 322, quoting Williams v Olson, 141 Mich 580; 104
NW 1101 (1905).]
Concluding that substituted service by publication could be made even where the return
of notice was deficient where the record reflected a good-faith attempt to effect personal service,
Justice Fellows, writing for the Court, observed:
While the statute is beneficent in purpose, and should be so construed as to aid
unfortunate redemptioners, it is nevertheless true that the statute is one of grace,
conferring a favor on redemptioners, and should not be given a construction as
would unnecessarily impede the State in the collection of its revenues. [Id. at
323-324.]
See also Weston v Moore, 265 Mich 165, 171; 251 NW 922 (1933) (notice not deficient
where sheriff’s return failed to show service on those in possession of land or to state that no one
was in possession of land and the plaintiff was not prejudiced); Gustin v Ziem, 289 Mich 219,
224-225; 286 NW 219 (1939) (return of service not deficient where it failed to state that parties
served were tenants by entireties).
Although Le Boeuf is factually distinguishable, we believe that the reasoning articulated
by the Le Boeuf Court is instructive here, where a thorough review of the record reveals that
defendants employed good-faith efforts to comply with MCL 211.140. Specifically, defendants
attempted to serve notice to redeem on the last recorded grantees in the regular chain of title,
Herman and Ella Manson. Moreover, there is nothing in the record indicating that defendants
were aware of plaintiff’s interest in the property by virtue of the probate proceedings, or that they
deliberately avoided serving him with notice. Indeed, even after personally serving Herman
Manson, whom defendants believed retained the only interest in the property after Ella’s death,
they served additional notice by publication to other parties with an interest by publishing the
notice to redeem in a local newspaper pursuant to MCL 211.140(5). Accordingly, we agree with
the trial court that genuine factual disputes concerning whether plaintiff was properly served did
not exist to warrant trial.
Affirmed.
/s/ Peter D. O’Connell
/s/ Jessica R. Cooper
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