If one of the two sales was valid, according to the finding, it vested a transferable title on which the grantee could stand, and, in case the other was not valid, its inclusion in the state deed could not impeach the grant as to the other. Hence the title under the state deed must be deemed sufficient, unless it appears upon the facts that both sales are impeached.

The circuit judge has found that the board of supervisors, at their annual session in 1869, directed the supervisor of the township in which the land is situated to spread upon the roll a state and county tax, but did not direct spreading any other. That in fact, however, there was spread additional taxes for township, highway and school purposes, and that an item of each was assessed against the land in question.

That in 1870 the board directed him to spread a state, county and township tax and no other. But that he added a school and highway tax, and that some of each was assessed against this land. There is no finding whether these local taxes, added by the supervisor, without direction of the board of supervisors, were or were not raised or authorized by any authority, or whether the school tax was the usual mill tax, or some other. On these subjects the finding gives no explanation.

In this state of the case, the plaintiff in error, who relies on the tax title, contends that, as there is nothing found to the contrary, it is a presumption of law that these taxes were duly authorized and were regular; and, on the other hand, the defendants in error, who dispute this title, assume the position that, as there is no finding of any proceeding for the raising of those taxes, the conclusion must be that they were placed on the roll without any authority whatever. We think the position taken by the plaintiff in error is, upon this record, the true one.

That these taxes might have been lawfully authorized must be admitted. The circumstances do not show that there was any lack of occasion or lawful impediment. The statute not only enacts that the auditor general's deed shall be prima facie evidence of the regularity of all the proceedings, (§§ 1057-1091, C. L.; Blackwood v. Van Vliet, 30 Mich. 118,) but in section 1129 it provides further that "all taxes assessed upon any property in this state shall be presumed to be legally assessed until the contrary is affirmatively shown." These regulations are controlling. As we have seen, the fact is proved that these township, school and highway taxes for 1869, and school and highway taxes for 1870, were actu

ally assessed against the land, while at the same time there is no affirmative finding whatever they were not duly authorized.

Here, then, the law comes in aid of what is actually found and fills up the gap. If there were facts to show affirmatively that the taxes were authorized, there would be no occasion for presumption; and, on the other hand, if there were facts to show affirmatively that they were not authorized, there would be no room for any. There is, hence, no place for the application of the rule of presumption enacted by the statute, except one like this, where the point is left neutral on the reported facts. It was for the defendants in error, as assailants of the tax title, if the case permitted, to leave no room for this presumption on the subject. It was incumbent on them to bring upon the record an affirmative showing, indicative of the want of authority to assess these taxes. On this part of the case the tax title must prevail.

But there is a further ground of complaint against it. It is found that there was no certificate by the county clerk to the return, or statement made by the township treasurer to the county treasurer for either year, and no certificate by the county treasurer to the township treasurer's return for 1870. These omissions are claimed to invalidate the sale of both years. There is no provision for the clerk to certify to the township treasurer's returns to the county treasurer. The clerk's duty to certify applies to proceedings where the time for collection is extended, (§ 1005, C. L.) and to the accuracy of the county treasurer's transcript to be sent to the auditor general (§ 1033.) Supervisors of Houghton v. Rees, 34 Mich. This disposes of the objection so far as it relates to the sale for 1869. What is left of it only concerns the sale for 1870, and the point is whether the omission of the county treasurer to certify to the correctness of the return made by the township treasurer is a fatal defect in the proceedings for that year.

481.

The question is important, and some members of the court think it desirable to have more discussion before giving an opinion upon it. The result on this hearing does not depend upon it. The sale for 1869 stands by itself, and as it seems to have been valid, the auditor general's conveyance is not void. It was an effective grant of all the interest which the state acquired by virtue of that sale, and was sufficient to show title in the plaintiff in error. There is, consequently, no necessity at present for going into the objection made to

the sale for 1870. Its decision, one way or the other, could make no difference. We think the court erred in finding against the tax title on the facts reported, and that the judgment should be reversed, and one entered here for the plaintiff in error, with costs of both courts, and the case be remanded for such other proceedings as may be proper. (The other justices concurred.)

WILKES I. STEWART vs. WILSON M. WORDEN.

Filed November 29, 1879.

8. owning certain property valued at $9,000, exchanged the same with W. for property valued at $10,000, subject to a mortgage encumbrance, then existing and due, of $3,000, no personal liability for which attached to W. To equalize the exchange W. gave S. a mortgage back on the property received from him for $2,000, conditioned for the payment in due season of all moneys due on the $3,000 mortgage except $1,000 and interest thereon. At the time of the exchange W. represented and S. seemed to have understood that an extension of time had been secured on the $3,000 mortgage. In fact no such extension was ever granted. S. afterwards quitclaimed the property received by him to a third person, subject to the $3,000 mortgage, his grantee assuming it, as to him, as part of the purchase price. W. never paid any part of the $3,000 mortgage. Held, that the $2,000 mortgage became immediately due at the election of S.; that it called for payment and not merely indemnity, and that S. might proceed to foreclose the same, although he had paid no portion of the $3,000 encumbrance.-[ED.

Appeal from Newaygo.

Fuller & Standish, for complainant.

E. L. Luton, for defendant.

GRAVES, J. October 30, 1872, complainant owned in fee and free from encumbrance, a hotel property in the village of Newaygo, and twenty acres of land near there.

At the same time the defendant Worden owned a farm near the village of Lowell. On that day they agreed upon an exchange.

Complainant's property was valued at $9,000, and Worden's farm was estimated at $10,000; but the farm was. encumbered, and Worden's interest was an equity of redemption and nothing more.

Certain former owners had mortgaged it January 1, 1857, to David Dows, of New York, for $5,000, with semi-annual interest at 7 per cent., and $3,000 was yet unpaid, though already due and payable by the terms of the mortgage, together with interest from July 1, 1872. Worden was not

personally liable for the encumbrance, but its existence qualified and reduced his interest in the place.

It seems to have been understood by Stuart that an agreement had been made with Dows to extend the time, and the papers are clear that Worden so represented, but in fact no such agreement had been made then or has been made since. The exchange was effected on these terms: Stuart conveyed his property at the price of $9,000, and Worden deeded the farm upon the understanding that if the whole interest were included it would be worth $10,000; but as his interest actually amounted to only $7,000, it was agreed that he should bring his interest in the equity of redemption up to $9,000, (the amount received from Stuart,) by paying off $2,000 of the Dows mortgage, Stuart being left to take care of the other $1,000 still behind on that mortgage. The deed of Worden embraced the usual covenants, but following the cov-. enant against the encumbrances the qualifying expression "except as above stated" was inserted. In the body of the instrument and preceding the covenants a special provision was inserted relative to the Dows mortgage, which will be again noticed further on.

As part of the transaction, and in order to secure Stuart for the difference of $2,000 between what he transferred to Worden and what Worden transferred to him, and to equalize the exchange and support the covenants of title in the deed, Worden gave back a mortgage on the property he received from Stuart.

It recited the transfer from Worden to Stuart, and the encumbrance, and that Stuart assumed $6,000, and that it was obligatory on Worden to pay the remainder as specified in the agreement embodied in Worden's deed to Stuart; and it further recited, among other things, that Worden claimed that there was a binding agreement extending the time of payment of the mortgage to the ninth of April, 1875. It then set forth that Worden, in consideration of one dollar paid by Stuart, "and in order to secure the said Wilkes L. Stuart, his heirs and assigns, against loss or damage by reason of the failure of said Wilson M. Worden to pay the amount remaining unpaid on the mortgage hereinbefore specified, excepting the part thereof assumed by said Wilkes L. Stuart, and to secure the due performance of the covenants herein before particularly mentioned, do by these presents," etc.

The condition was written in these terms. "Provided always, and these presents are upon the express condition,

that if the said party of the first part shall, will and truly pay or cause to be paid in due season all sums of money now remaining unpaid upon the said mortgage herein before specified, excepting the sum of one thousand dollars and interest thereon, the payment of which is and has been assumed by said Stuart, and shall save said party of the second part harmless from loss or damage by reason of the failure of the title to the lands conveyed to said party of the second part by said party of the first part, as herein before particularly set forth as represented and covenanted in said deed, it being understood that said Worden is at liberty to obtain further extension of the time of payment of said mortgage debt, and that at any time when he shall perfect the record title of the lands this day conveyed by him to said Stuart, and herein before particularly specified, so as to show a complete and perfect chain of title thereto down to him at this date, then this mortgage, so far as the same relates to the title to the said land, shall cease and be null and void, and shall, on such payment as aforesaid, entirely cease and be null and void; but in case of non-payment of the said sum of money. above specified, or of a failure of the title to the lands herein before particularly described as covenanted by him in said deed herein before referred to, to be vested in him, the said Wilson M. Worden, at said date, then," etc; there being the usual conclusion, with the addition of a clause for an attorney's fee in case of proceedings to foreclosure.

The agreement in Worden's deed, to which reference is made, is as follows:

"It is understood and agreed by and between the parties to this instrument that the lands herein before described are conveyed subject to a certain mortgage thereon executed by W. P. Collins and A. O. Harron and wives, January 1, A. D. 1857, to David Dows, for the sum of $5,000, and recorded in the office of the register of deeds of Kent county, Michigan, in liber "N" of mortgages, on page 171, on which mortgage there is claimed to be unpaid the sum of $3,000 of principal, at this date, by the said Wilson M. Worden, and interest thereon at seven per cent. per annum, from July 1, 1872, of said sum of $3,000. The said Wilkes L. Stuart assumed the payment of $1,000 and interest thereon, agreeable to the terms of said mortgage; the remaining sum of $2,000 and interest, as aforesaid, to be paid by said Wilson M. Worden, reference being had to a mortgage of even date herewith executed by said Worden to said Stuart, conditioned for such payment, which