George E. & M. A. Nichols, for petitioner. MONTGOMERY, C. J. The return shows the petitioner is held by the warden of the State house of correction and reformatory at Ionia by virtue of a judgment of the circuit court for the county of Kalamazoo. The judgment entry recites that the prisoner has been "duly convicted of the crime of larceny from a store, as appears by the record thereof," and concludes with a sentence to the State house of correction and reformatory at Ionia for a term of four years. It is contended that the prisoner should be discharged for the reason that the commitment does not, on its face, show that the offense of which the prisoner was convicted was one punishable by imprisonment in the institution to which he was committed. The defects pointed out are that the recitation is that larceny "from" a store was committed, whereas the offense defined by the statute is larceny "in" a store, and that the judgment does not recite that the larceny was committed in the daytime, which is also an ingredient of the offense. The return of the officer is accompanied by a copy of the information upon which the petitioner was tried. The record, as thus supplemented, shows that he was tried and convicted of the statutory offense. The return also shows what the testimony tended to show, and petitioner's counsel contend that this testimony does not show that the offense was committed in the store building, within the meaning of the statute. It is not the office of habeas corpus to review the proceedings of the trial court, where jurisdiction is shown. Such review should be taken on a writ of error. Is the commitment so defective as to require the enlargement of the petitioner? In determining this, it is to be kept in mind that the proceeding under review was had in a superior court. In habeas corpus proceedings, as in others where the attack is collateral, the judgments of a superior court receive different consideration than that accorded to those of inferior tribunals. Hurd, Hab. Corp. 367 et seq. The general rule is that nothing shall be intended to be out of the jurisdiction of a superior court, except that which especially appears to be. Id. 367. We find it unnecessary to determine whether this judgment entry, standing alone, would be sufficient evidence. It is common practice to accompany a writ of habeas corpus by a writ of certiorari. This course was not taken in this case, but the return sets up the facts, and petitioner's counsel offer no objection to their consideration. By this return it appears that the prisoner was convicted by a court of competent jurisdiction of an offense properly charged, and which subjected him to the punishment meted out to him. Under such circumstances, the petitioner should not be discharged. Hurd, Hab. Corp. 419 et seq. The prisoner will be remanded to serve out his sentence, unless sooner discharged. The other Justices concurred. PORTER v. CORBIN. TAX SALES-PURCHASE BY MORTGAGEE-EFFECT of. Appeal from Eaton; Smith, J. Submitted April 11, 1900. Decided May 15, 1900. Bill by Albert Porter, Frank H. De Golia, and William 124 201 s82NW 818 129 348n Smith against John M. Corbin, Edwin S. Harris, and Roscoe D. Dix, auditor general, to quiet title. From a decree for complainants, defendants Corbin and Harris appeal. Affirmed. Huggett & Smith, for complainants. J. B. Hendee (Corbin & Peters, of counsel), for appellants. LONG, J. Complainants filed this bill for the purpose of removing a cloud and quieting title to lots 1, 2, 3, and 4 of block 31, Waldron's addition to the village (now city) of Eaton Rapids, this State. The cloud was occasioned through the purchase of a tax title by defendants Harris and Corbin, December 2, 1895, for the taxes of 1893, at which time complainant Porter was in possession by tenant, under a written contract of purchase. It appears that February 27, 1890, J. M. C. Smith purchased the premises in question from defendants Corbin and Harris for $600, and gave back a purchase-money mortgage to them for $300, payable in three equal annual installments. Smith sold the premises soon thereafter to Albert Porter on a written contract, under the terms of which Porter was to have possession, and pay the taxes on the premises. Complainant Porter thereafter executed a mortgage upon the premises and other lands for $5,000 to complainant De Golia. In April, 1893, J. M. C. Smith and wife quitclaimed the premises to Herbert H. Hamilton, as cashier of the Michigan State Bank, subject to the contract with Porter. This purchase was made with the funds of the bank, of which Corbin was president, Hamilton cashier, and Harris assistant cashier. December 30, 1895, complainant William Smith purchased the apparent title of Hamilton in the premises, and now claims to hold the same in trust for complainant Porter. May 1, 1893, Porter and wife gave a mortgage to defendant Corbin upon these and other lands for $10,000. It also appears that December 2, 1895, the premises were sold for the delinquent taxes of 1893, and a deed made for the same to defendant Harris on March 5, 1897. It is conceded that defendant Corbin has a half interest in this Harris tax deed. The main contention of counsel for complainants in relation to the claim of defendants Harris and Corbin is that they, being mortgagees, can acquire no title under this tax deed as against the mortgagor. It appears that the defendants were acting in entire good faith, and the question is purely a legal one. The rule is well settled, we think, that a mortgagee cannot acquire title to the mortgaged premises by purchase at a tax sale; the rule being that such purchase amounts to a payment of the tax, and inures to the benefit of the mortgagor. Our statute (Act No. 206, Pub. Acts 1893, § 53) provides that "any person having a lien on property may, after thirty days from the time the tax is payable, pay the taxes thereon, and the same may be added to his lien, and recovered, with the rate of interest borne by the lien." It was held by this court in Boardman v. Boozewinkel, 121 Mich. 320 (80 N. W. 37), that where the purchaser at a tax sale at the time of the purchase was the attorney for the mortgagee in a foreclosure proceeding on the land sold, and afterwards conveyed his interest by quitclaim to his client, and there being no evidence to show that the attorney claimed title, the purchase amounted to a redemption from the sale in favor of his client, and could not be considered as an independent title. Jones on Mortgages (1134) lays down the rule in its broadest terms. It is said: "Inasmuch as the mortgagee has the right to pay the taxes in order to protect his mortgage, his purchase at the tax sale must be regarded merely as such payment, and not as giving him a title." In the case of Eck v. Swennumson, 73 Iowa, 423 (35 N. W. 503, 5 Am. St. Rep. 690), it appeared that judgment of foreclosure of a mortgage was obtained March 30, 1881, on a mortgage dated May 27, 1878, and on the same day the judgment was assigned to plaintiff. The premises were sold on execution in February, 1885, and bid in by the plaintiff, to whom a sheriff's deed duly issued. In November, 1879, the property was sold for the taxes of 1878, and bid in by the mortgagee, who assigned to a third person. A tax deed was issued to this person, who afterwards conveyed to defendant. It was held that, as the mortgagee had the right to pay the taxes in order to protect his mortgage, his purchase at the tax sale must be regarded as such payment merely, and could not operate to give him title. In some of the States it is held that a mortgagee out of possession may acquire a tax title; but in a majority of the States this rule does not prevail, but the rule is that a mortgagee, either in or out of possession, may not acquire it as against the mortgagor or other mortgagees. Especially is this the rule in those States where, by the statute, one having a lien upon the premises is permitted to pay the tax and add the amount to his lien. In Maxfield v. Willey, 46 Mich. 252 (9 N. W. 271), it was held that neither party to a mortgage could cut off the other's interest by bidding in the premises at a tax sale, if the other objected thereto. The relations between complainants and defendants Corbin and Harris were such at the time the premises were bid in for the taxes and deeded to Harris that the transaction must be regarded as a redemption, and Corbin and Harris can claim no title under the tax deed. The amount bid was $24.29, which complainants have been willing to pay, with interest. The decree of the court below must be affirmed, with costs. MONTGOMERY, C. J., MOORE and GRANT, JJ., con. curred. HOOKER, J., did not sit. |