$382.45 for 1885 taxes which had been returned to the Auditor General against the west half of said land, which, added to $37.75, the amount due for the taxes of 1891, amounted to $420.20, upon payment of which a deed was issued; that on December 13, 1904, Miller caused to be served upon complainant the statutory notice for reconveyance; that complainant, claiming that the taxes for 1885 were void and no lien against said land, tendered defendant Miller the amount paid by him for the taxes of 1891 together with 100 per cent. and fees fixed by statute, and demanded a reconveyance, which was refused. Complainant then filed this bill of complaint, praying that the sale of said land for the taxes of 1885 be declared void and set aside, and said Miller be decreed to have acquired no rights thereunder, and that upon payment of the amount tendered he be decreed to convey the premises to complainant. He also asked for an injunction pendente lite, and for general relief. Defendant Miller and the Auditor General answered the bill of complaint. The bill was taken as confessed by the other defendant who is drain commissioner of the county of Allegan, and who appears to be only a nominal party. The case was heard in open court. Defendants offered no proofs. After the hearing, the court made a decree denying relief to complainant, and dismissing his bill of complaint. Complainant has appealed.

The taxes called in the record and in this opinion taxes of 1885, the validity of which are in dispute, were in fact mostly reassess-, ed ditch taxes for the years 1881, 1882-1882 for the Hooker Swamp Drain-and for 1884 for the Shook Drain; also a small sum for general taxes for 1885. Those proceedings relative to the Hooker drain were had under the township drain law of 1875, as amended in 1877. It would be of no benefit to state in detail the provisions of this law. The Shook drain proceedings were under the law of 1881. The records of the proceedings to lay out both of these drains were not found or produced at the time of the trial, and were shown to be lost. It was proved by the testimony of Mr. Denison that he saw them, and they were examined by him with great care with special reference to the validity of these proceedings and from this testimony the court is satisfied that these records showed no lawful drains were ever laid out or established. The evidence also establishes that these drains were never dug, and no contracts were ever let for digging them. Under the township drain law of 1875, as amended, the sale of lands for nonpayment of drain taxes was made by the county treasurer, who gave deeds on such sales, subject to all general taxes, "and subordinate to state deeds for nonpayment of taxes." This law contained no provision for reassessment, and no provision for return to the Auditor General. The drain law of 1885 which provided for re

assessment of drain taxes assessed under the law of 1881 made no provision for the reassessment of taxes levied under the township drain law of 1875 as amended, but the law of 1881 which repealed all former acts provided that all proceedings should be carried forward and completed under the acts mentioned, which included the law of 1875 as amended in 1877. The action, therefore, of the board of supervisors in ordering this Hooker drain tax reassessed, and all proceedings as to the return to the Auditor General and sale, were without authority of law and void.

It is urged that by reason of the limitation of the act of 1885 (Pub. Acts 1885, p. 331, No. 227), providing “that any drain that has been established ten years shall be conclusively deemed to have been regularly established," complainant is estopped from questioning the legality of these drains. The evidence shows that the Hooker drain was never established legally on paper; that neither the place of beginning nor the terminal were fixed; that no width was given which the law required. As already stated these ditches were never dug or a contract let for digging. The statute refers to an actual drain established and dug on the face of earth. Apart from the question of the establishment of this Hooker drain is the question of a reassessment for which there was no provision of law whatever. The sale relied on by defendants included these taxes as reassessed. The necessary conclusion is that the Hooker drain taxes were invalid, and that there was no valid sale of the land for these taxes reassessed in 1885. The law under which the Shook drain proceedings were had was repealed by the drain law of 1885, under the provisions of which these drain taxes were authorized to be reassessed and such action was attempted by the board of supervisors. Such action, however, could not give validity to this drain tax if it was illegal. The undisputed evidence in the case is that no contract was ever let and no ditch was dug. The proceedings which were had therefore never amounted to the establishment of a drain, and never warranted the original assessment of $33.95 against this land. The reassessed tax was therefore invalid. The sum of $2.83 general taxes assessed for 1885 appears to be valid. This was included in the amount $127.06 for which the sale was made in 1887. This court has repeatedly held that a sale is void if a part of the tax is invalid. Case v. Dean, 16 Mich. 12; Cooley on Taxation (3d Ed.) 955; Silsbee v. Stockle, 44 Mich. 561, 7 N. W. 160, 367; Burroughs v. Goff, 64 Mich. 464, 31 N. W. 273; Boyce v. Sebring, 66 Mich. 210, 33 N. W. 815.

It is urged that complainant by reason of his laches cannot dispute the validity of these taxes. He purchased the land in 1885 for which he received a warranty deed excepting "certain drain tax claims." He at once

consulted Taggart and Wolcott, his attorneys, and was advised that these drain tax claims were invalid. He has been in possession continuously since his purchase, and the first claim or notice of claim or demand in regard to the matter is the notice of defendant Miller given under the tax law, and necessary prior to instituting proceedings for possession as purchaser under a tax deed. Complainant has never had his day in court to litigate the validity of these taxes. The sale was not a chancery sale as required under the present law. There is no reason why an owner in possession should institute proceedings against a claim which he is advised was invalid and which no person is asserting. O'Connor v. Carpenter, 144 Mich. 240, 107 N. W. 913. See, also, Sanborn v. Johnson, 148 Mich. 409, 111 N. W. 1091.

The main contention of the defense in this case, briefly stated, is that Miller, as purchaser of the title from the state for the 1891 tax, was under section 84 of the general tax law required to pay the other taxes of 1885 returned to the Auditor General, and that to obtain a reconveyance complainant is required to pay the amount paid by defendant on such purchase from the state, together with 100 per cent. and fees and charges provided by law. If this contention is correct, complainant has no standing in court.

*

*

Section 84 of the general tax law, under which payment of other taxes returned is required, reads: "Any person may purchase any state tax lands by paying therefor to the Auditor General the amount for which the same was bid off to the state with interest * together with the other taxes which have been returned to the Auditor General and remain a lien upon such lands at the time of the purchase so made, with the interest," etc. The clear meaning of this statute is that the tax title purchaser must pay the other taxes returned to the Auditor General, and which remain a valid lien upon such lands at the time. While except perhaps when appearing void upon the face of the record-the Auditor General could not be called upon to determine as to whether the lien of the other taxes was valid or not, it certainly cannot be said that the legislative intent was that the owner of land who had been guilty of no laches, who had disregarded the provisions of no statute, and who had had no day in court, or opportunity to be heard upon the validity of the lien of such other taxes, should be compelled to pay without question a tax that never was a valid lien upon his land and which had never been asserted as such, because a tax title purchaser had been required to pay the same as a condition of his purchas from the state. The reasoning upon which this contention is based is that the state. having acquired the title to the property,

can attach such conditions as it sees fit, to be performed by the owner upon his redemption (repurchase) from the purchaser, and having done this the matter is foreclosed. It is not necessary to discuss to what length the state might go in the imposition of terms for reconveyance. It has attached such condition, and the only possible construction of that condition is that it required the payment of other taxes which were a valid lien against the lands. Holding that only valid liens were included in the statute it follows logically that the owner cannot be required to pay double the amount the purchaser paid for taxes not a valid lien upon his lands, unless he has waived all rights, or is estopped from asserting its invalidity.

The claim is made that such a construction of this statute is a wrong against the purchaser, and will tend to deter the collection of delinquent taxes. As far as the purchaser is concerned he can lose nothing except the use of his money. If the tax is not a valid lien his payment is returned. When he buys he should use ordinary diligence, and slight examination will disclose fatal errors. This argument is not new. It has been made in every case by the tax title purchaser where there was a probability that he would be held to have made a bad investment. Considering its effect upon the state it is only necessary to say that the possibilities under the present law for similar conditions to occur are very small, and that with the exercise of reasonable diligence and industry on the part of the multitude of employés in the tax collecting department they would be eliminated entirely.

Complainant by his bill and proofs made out a case entitling him to equitable relief. The taxes of 1885 were not a valid lien upon this land at the time of defendant Miller's purchase. The sale for said taxes was a void sale. The entire amount thereof except $2.83 was absolutely void, and complainant is entitled to have the same so decreed. All the parties in interest are before the court, and such decree can be now made as will dispose of the entire controversy. It will be unnecessary to order this amount of the 1885 assessment, which is a valid tax, to be returned for reassessment, but the same will be paid by complainant to defendant Miller with such interest, if any, as may lawfully be added to the same if returned for reassessment. This amount, together with the amount tendered by complainant to said defendant Miller, will be decreed to be paid him by complainant, and thereupon said Miller to reconvey all his interest in the lands in question to complainant. The Auditor General will be decreed to refund to defendant Miller the money paid on his purchase for such portion of the 1885 taxes as are by this opinion declared to be invalid. The decree of the circuit court should be reversed, and a decree will

be entered in this court in favor of complainant in accordance with this opinion, with costs of both courts against defendant Miller.

BLAIR and OSTRANDER, JJ., concurred with MCALVAY, J.

VELTHOUSE v. ALDERINK. (Supreme Court of Michigan. June 27, 1908.) 1. SEDUCTION-ACTION FOR DAMAGES-PLEAD

ING.

Where the declaration in a seduction action counts on Comp. Laws, § 10,418, providing that in such actions it shall be unnecessary to show loss of services, but that if the female be a minor the action may be brought by her parent or guardian, and if she be of age by her father or any other relative authorized by her, the statute fixes the character of the action, and the declaration cannot be sustained independently of the statute.

2. SAME INVOLUNTARY INTERCOURSE - EFFECT.

Under Comp. Laws, 8 10,418, authorizing an action for seduction on behalf of the seduced female, such an action may be maintained, though the intercourse was had by force and against her will.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Seduction, § 5.]

Carpenter and McAlvay, JJ., dissenting.

Error to Circuit Court, Ottawa County; Philip Padgham, Judge.

Action by Fanny Velthouse, by Lida Velthouse, her next friend, against Henry Alderink. From a judgment for plaintiff, defendant brings error. Affirmed.

Argued before GRANT, C. J., and BLAIR, MONTGOMERY, CARPENTER, and MCALVAY, JJ.

Walter I. Lillie, for appellant. Farr & Farr, for appellee.

MONTGOMERY, J. The plaintiff, in an action in which she counted on section 10,418 of the Compiled Laws, recovered a judgment of $1,350 against the defendant, and the case has been brought here for review on error. But a single question was raised. The point was made at the close of the testimony of the plaintiff, and again in the request to charge, and the language of the bill of exceptions is stated as follows: "The defendant, by his attorney, requested the court to instruct the jury, in substance, that the action was one on the case for seduction, and brought under section 10,418 of the Compiled Laws of 1897; that to constitute seduction there must be a consent to the sexual intercourse by the woman; that the declaration alleged the intercourse to have been without the consent of the plaintiff and against her will; that the proof failed to show that plaintiff consented to the intercourse, but on the contrary, that she refused to yield to the claimed persuasions and entreaties of the defendant, and the sexual intercourse between her and the defendant, if any was

had, was effected without her consent and against her will; and that therefore the plaintiff could not recover in this case, and the verdict of the jury should be no cause of action." It will be noted that no other question relating to the pleadings in the case is raised than that an action for seduction cannot be predicated upon intercourse brought about by force and against the will of the plaintiff. We shall deal only with the precise question raised. Other questions that might present themselves upon the record are not discussed.

At the argument, it was suggested to counsel that, in any event, the declaration averred facts sufficient to make a case, and that any irregularity in the appointment of a next friend would be obviated by a plea of the general issue. This would undoubtedly be true in any ordinary action, and it has been so held in the two cases of Sick et al. v. Michigan Aid Association, 49 Mich. 50, 12 N. W. 905, and McDonald v. Weir, 76 Mich. 243, 42 N. W. 1114. The present case, however, presents a somewhat different question. The declaration counts on the statute (section 10,418), and this would seem to fix the character of the action, and Ryan v. Fralick, 50 Mich. 483, 15 N. W. 561, seems inconsistent with the suggestion that this reference to the statute may be treated as surplusage.

This brings us to a consideration of the question whether, in an action for seduction brought on behalf of the seduced party, where the other elements are present-and it is not claimed in this case that they are not present the action may be maintained notwithstanding the intercourse was had by force and against the will of the plaintiff. The question has been before this court in a number of cases where the action was brought by the father, and where the action was predicated upon the statute for seduction. The court has held in these cases that the fact that force is employed is no bar to recovery. See Dalman v. Koning, 54 Mich. 320, 20 N. W. 61; Johnston v. Disbrow, 47 Mich. 59, 10 N. W. 79; Watson v. Watson, 53 Mich. 168, 18 N. W. 605, 51 Am. Rep. 111; Stoudt v. Shepherd, 73 Mich. 588, 41 N. W. 696. A summary of the preceding cases is found in Stoudt v. Shepherd, 73 Mich. 597, 41 N. W. 699, as follows: "The case of Dalman v. Koning, 54 Mich. 320 (20 N. W. 61) (in this respect following Johnston v. Disbrow), held that, as the unlawful intercourse was the ground of action, the use of force did not negative the legal idea of seduction, and a recovery could be had for all the wrong and its consequences. It had already been held in Watson v. Watson, 49 Mich. 540, 14 N. W. 489, that the two counts, one involving an assault and the other enticement, were not inconsistent with the same statutory theory, and did not make a double charge."

It would seem from this that the gravamen of the charge is debauching the plaintiff,

and that it is not open to the defendant to assert that the means by which this was accomplished was force, rather than the usual arts and persuasions of the seducer. So, in Watson v. Watson, 53 Mich. 168, 18 N. W. 605, 51 Am. Rep. 111, in referring to this subject, it is said: "The plaintiff's evidence did not make out a rape. It made out only that her will was overcome by the defendant's superior will, which had controlling influence because of the parental relation which he had assumed towards her. If the case were in fact one of rape, there would be very good authority for holding that the action might be sustained notwithstanding the fact that the intercourse was accomplished by force"-citing Kennedy v. Shea, 110 Mass. 147, 14 Am. Rep. 584, and Lavery v. Crooke, 52 Wis. 612, 9 N. W. 599, 38 Am. Rep. 768. The only case to which our attention has been directed in which the precise point has been considered is the case of Marshall v. Taylor, 98 Cal. 55, 32 Pac. 867, 35 Am. St. Rep. 144, in which the evidence from one viewpoint, indicated that the plaintiff lost consciousness from the effect of wine at the time the act was committed, and it was said: "If this be so, the defendant was guilty of rape, and, while it is held in those states where seduction is a criminal offense that proof of a rape will defeat a prosecution for seduction [citing authorities], yet no case is found in the books where a party has failed to recover in damages for seduction when the evidence at the trial disclosed the defendant guilty of the more heinous offense of rape. Such a showing but aggravates the injury, and furnishes ample ground for exemplary damages. It does not lie in the mouth of the defendant to say: 'I am not liable to pay any damages in this action, because the evidence discloses I did not seduce the plaintiff, but committed the atroclous crime of rape.' Where a parent sues for seduction of his daughter, and consequent loss of service, and it appears that the intercourse was accomplished by force, such a showing will not defeat the action, but will aggravate the injury. Furman v. Applegate, 23 N. J. Law, 28; Kennedy v. Shea, 110 Mass. 147, 14 Am. Rep. 584; White v. Murtland, 71 Ill. 250, 22 Am. Rep. 100. While the recovery of the parent is based upon a different principle from that involved where the female is the complainant, yet we see no bad effect to follow an application of the same rule in her case. Certainly, a court will not be astute in drawing fine distinctions from the evidence in order to discover a case of rape, if such fact would defeat a recovery. For the foregoing reasons we conclude that, if plaintiff was unconscious from the effects of the wine at the time defendant had intercourse with her, her cause of action was not defeated by reason of such fact." As was stated in Stoudt v. Shepherd, 73 Mich. 588, 41 N. W. 696, our statutes have removed from such actions all

Plaintiff's declaration is as follows: "Lida Velthouse, mother of Fanny Velthouse, a minor of the age of 20 years, plaintiff in this suit, for and in behalf of her said minor daughter, Fanny Velthouse, the father of the said Fanny being dead, by Farr & Son, her attorneys, comes into this court in and for the said Fanny Velthouse, and as her mother in and by virtue of the provisions of section 10,418 of the Compiled Laws of this state of 1897, and complains of Henry Alderink, defendant herein, of a plea of trespass on the case: For that whereas, the said defendant, contriving, and wrongfully, wickedly, and unjustly intending to injure the said Fanny Velthouse, and to deprive her of the comfort, fellowship, society, and respect of her friends and relatives and of the community in which she lived, and to bring her into great discredit, dishonor, and disgrace, and to ruin her good name and fame in the community where she resided, heretofore, to wit, on the 6th day of October, 1906, at the township of Allendale, in said county, violently and without the consent of the said Fanny Velthouse seized her and threw her upon the ground, and then and there debauched and carnally knew her, the said Fanny Velthouse, and against her will, whereby the said Fanny Velthouse became pregnant and sick with child, and so remained and continued for a long space of time, to wit, for the space of nine months then next following, at the expiration whereof, on, to wit, the 20th day of June, 1907, was delivered of the child with which she was so pregnant, as aforesaid, to wit, at the township of Allendale, at the time aforesaid, by means of which said several premises the aforesaid Fanny Velthouse suffered great and extreme pain, and experienced great suffering, and was greatly humiliated and disgraced, and was deprived of the comfort, fellowship, society, and respect of all her friends and relatives, and of the community in which she lived, and was ruined and brought into great infamy and reproach, and has been greatly injured and damnified by the premises, to the damage of the said Fanny Velthouse of $10,000, and therefore this suit is brought in her behalf as aforesaid."

To this defendant pleaded the general issue, entitling his plea: "Fanny Velthouse v. Henry Alderink." The issue was tried by a jury, and the testimony of the plaintiff introduced without objection. She testified. in accordance with the averments of the

declaration, that the intercourse was brought about by force and without her consent. At the conclusion of the case, defendant requested the court to direct a verdict in his favor upon the ground "that the action was one on the case for seduction and brought under section 10,418 of the Compiled Laws of 1897; that to constitute seduction there must be a consent to the sexual intercourse by the woman; that the declaration alleged the intercourse to have been without the consent of the plaintiff and against her will; that the proof failed to show that plaintiff consented to the intercourse, but, on the contrary, * * * that the sexual intercourse between her and the defendant * * was effected without her consent and against her will." The court refused to give this request and submitted the issue to the jury, who rendered a verdict in plaintiff's favor. The refusal to give the foregoing request is the only ground relied upon for reversal of the judgment.

CARPENTER, J. (dissenting, after stating the facts as above). Can this suit be maintained under section 10,418 of the Compiled Laws of 1897? This suit is not the suit of Lida Velthouse, the mother. It is the suit of Fanny herself to recover her damages, and Fanny is the real plaintiff, and it is so understood by defendant's counsel. In his brief it is stated: "It is just the same as if the plaintiff (Fanny) had brought the action herself." Section 10,418, Comp. Laws 1897, provides: "It shall not be necessary in any action on the case for seduction hereafter to be brought, to allege in the declaration, or to prove on the trial, any loss of service in consequence of such seduction; but if the female seduced be a minor at the time of the seduction, the action may be brought by her father, mother, or guardian; and if such female be of full age, the action may be brought by her father, or any other relative who shall be authorized by her to bring the same." Before this statute was passed, the seduced woman had no right of action; but now she has. This statute gives her a right of action which she may enforce in her own name. Watson v. Watson, 49 Mich. 540, 14 N. W. 489. But does it give her a right of action if the intercourse is entirely accomplished by force and against her will? If the intercourse is accomplished in part by force and in part by seductive arts, the case is one of seduction and within the statute. Watson v. Watson, 53 Mich. 168, 18 N. W. 605, 51 Am. Rep. 111. But that is not this case. If the case of the plaintiff, as averred in the declaration and established by the testimony, is one of seduction, it would be a most equitable doctrine, though its legality may be open to question, to say that the defendant should not be permitted to avoid responsibility by proving that he committed the more heinous offense of rape. But that is not the case. Here the case made by plaintiff's declaration and by her

testimony is one of rape. I cannot assent to the proposition that rape is seduction, or that the statute intended to cover the case of rape. There was no need for a statute in such a case, because the principles of the common law afforded ample remedy. And it may also be added that to cover the contingency of the testimony proving a case of rape the pleader may have two counts; one charging rape, and one seduction. Watson v. Watson, 49 Mich. 540, 14 N. W. 489. See, also, Bellant v. Brown, 78 Mich. 294, 44 N. W. 326. We are referred to many cases holding that the action may be maintained, though the intercourse relied upon was accomplished by force and violence. Kennedy v. Shea, 110 Mass. 147, 14 Am. Rep. 584; Lavery v. Crooke, 52 Wis. 612, 9 N. W. 599, 38 Am. Rep. 768; Damon v. Moore, 5 Lans. (N. Y.) 454. Each of these cases were brought by a father to recover compensation for damages resulting from his child being debauched. In those cases, as stated in Kennedy v. Shea, supra: "The gist of the action is the debauching of the daughter and the consequent supposed or actual loss of her services." In other words, in those cases, it was not necessary to prove seduction. It is otherwise, however, in this case, where the seduced female herself brings the suit. In such cases, as we have held in Greenman v. O'Riley, 144 Mich. 534, 108 N. W. 421, 115 Am. St. Rep. 466, a case of actual seduction must be established, and by that is meant: "The act of persuading or inducing a woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasions, or wiles, which are calculated to have, and do have, that effect, and resulting in her ultimately submitting her person to the sexual embraces of the person accused."

Marshall v. Taylor, 98 Cal. 55, 32 Pac. 867, 35 Am. St. Rep. 144, is more nearly in point. There the seduced female herself brought the action. The testimony showed that the illicit intercourse took place immediately after the plaintiff had drunk a glass of wine handed her by defendant. Her testimony was open to two constructions; one that the intercourse occurred while she was unconscious from the effect of the wine, and the other that she was conscious and was induced to yield her consent by reason of defendant's seductive promises. Plaintiff recovered a verdict and judgment in the trial court. Defendant asked the trial court to reverse that judgment upon the ground that plaintiff's evidence did not establish a case of seduction. The Supreme Court decided otherwise, saying: "Assuming her to have been conscious at the time the act of intercourse took place, and assented thereto"-she was seduced. And it was also held that defendant could not escape responsibility because the evidence disclosed him guilty of the more heinous crime of rape. In that case, assuming plaintiff to have been unconscious at the time the