offered for sale shall be considered and treated as if bid off to the State by the county treasurer," etc. It is urged that lands acquired under this section are not subject to private sale by the State under the statute, but we are of the opinion that they are.

* * *

This covers all questions specifically raised by the answer except the fourth. A further point is made in the brief upon the petitioner's deed. Such deed is in form. a quitclaim, and it is said to be insufficient, upon the ground that "it is the universal rule that, where the statute does not prescribe the form of the deed to be used in conveying lands to purchasers at tax sales, such a form of deed must be used as would, at the common law, have conveyed title." Counsel cites in support of this proposition: 2 Blackw. Tax Titles (5th Ed.),§772; Black, Tax Titles, § 396; Waldron v. McComb, 1 Hill, 111. This question is, settled by the case of Dawson v. Peter, 119 Mich. 274, which is upon all fours with the present case upon this point.

The fourth claim contained in the answer relates to the alleged application of the defendant to the county treasurer to pay taxes and charges. The evidence upon this subject is confined to the testimony of the defendant. He produced a tax receipt for the taxes of 1894, bearing date October 21, 1895, and his examination proceeded as follows:

"Q. At the time you received this receipt, with what object or purpose did you go to the county treasurer's

office?

"A. I went there to pay the taxes on that piece of property in town 9, or any taxes which might be against me in the county treasurer's office.

'Q. How about block 15?

A. Well, I asked about that, and they gave me that tax there with it, and I asked if there was anything more against the block, and they said there was not.

66

Q. Did you ask for a statement of all the taxes against the block?

66

'A. I asked for all the taxes against the block, and was there ready to pay all the taxes that was against me in the

county, if there was any other at the time when I was there. They said there was no more taxes against me than that receipt covered; and I paid all that they claimed was against me.

"Mr. Foote: We offer that in evidence. The object of that is to show that in 1894 he applied to pay the taxes against the lot, and they told him the taxes covered by that receipt were all the taxes unpaid against the lot.

"The Court: You knew in 1891 and 1892 you had not paid the taxes for those years?

"A. I knew I had an arrangement for a man to pay them, and calculated he had paid them. He had control of the property. He had the means to pay them with, and I supposed they were paid until a short time ago."

He added:

"The one that gave me that receipt was a young man working in the county treasurer's office, and he is not back there any more."

At this time redemption had expired on the sale for the tax of 1891.

My brethren think that this testimony brings the case within the rule laid down in the cases of Hand v. Auditor General, 112 Mich. 597; Wood v. Bigelow, 115 Mich. 123; Hough v. Auditor General, 116 Mich. 663; Kneeland v. Wood, 117 Mich. 174; Kneeland v. Hyman, 118 Mich. 56. But we cannot set aside the sale in this proceeding, as we might perhaps do under a motion seasonably made. But we presume that it is now too late for such a motion, and, if there is any remedy open to the defendant, it is probably by proceedings before the auditor general for a certificate of error. While we cannot deny the writ of assistance, we may exercise a discretion in the premises, and defer its issue, to give the defendant an opportunity to make an application to the auditor general, or to the court if that right is not lost by lapse of time.

The order of the circuit court is reversed, and an order will be entered here directing the circuit court to enter an order that a writ of assistance issue at the expiration of 90 days from this date, unless it shall, at or before that time, be

made to appear that the petitioner's deed has been canceled by the auditor general, or that proceedings be pending, in which case it shall be within the power of said court to vacate said order or further stay the issue of said writ, as justice may require. The petitioner will recover costs of this court.

The other Justices concurred.

MILLER v. CHILDS.

120 639 442

1. RELIGIOUS SOCIETIES - LOANS - AUTHORITY TO EXECUTE NOTE AND MORTGAGE.

At a parish meeting of an Episcopal church, the vestry submitted a report that it had arranged to purchase lots for a church and rectory, and that the Church Association of Michigan had signified its willingness to advance a certain amount, provided the property should be deeded to the association in trust for the parish, and that interest at 7 per cent. should be paid on the money advanced, and the principal should be paid in $100 installments. The meeting authorized the vestry to carry out the arrangement. Held, that the vestry was authorized to give notes for the amount secured. 2. SAME EQUITY — ASSIGNMENT OF MORTGAGE - FORECLOSURE DEFICIENCY.

Where a religious society, through its vestry duly authorized, borrowed money to purchase lots for church purposes, and gave its notes secured by mortgage upon the property, and the mortgagee subsequently assigned to a third person, having accepted from the vestry a new note, given without the knowledge of the society, equity will treat the transaction as an assignment of the original debt and security, and, upon foreclosure of the mortgage, will hold the society for a deficiency.

Appeal from Menominee; Stone, J. Submitted April 5, 1899. Decided July 11, 1899.

121

Bill by Sidney D. Miller and others, executors of the last will and testament of Helen L. Frue, deceased, against George A. Childs, warden, and others, vestrymen, of Grace Church of Menominee, the Church Association of Michigan, and Grace Church of Menominee, to foreclose a mortgage. From a decree awarding foreclosure, but finding defendant Grace Church not liable for any deficiency, complainants appeal. Modified.

Frederick T. Sibley (Sawyer & Waite, of counsel), for complainants.

B. J. Brown, for defendant church.

HOOKER, J. The complainants foreclosed a mortgage which their testatrix received under the following circumstances: Grace Church, in Menominee, contemplated the erection of a rectory, and had negotiations with the Church Association of Michigan in relation thereto. Both are corporations. At a meeting of the parish, the vestry submitted a report that it had arranged to purchase two lots for church and rectory; that the Church Association had signified its willingness to advance such an amount of money, up to the amount of $2,200, as was necessary to complete the payment for the lots and erect a rectory, provided the property should be deeded to that association in trust for the parish, and that interest at 7 per cent. should be paid on the money advanced, and the principal should be paid in $100 installments. The meeting authorized the vestry to carry out the arrangement. Thereupon the deed was made by Grace Church to the Church Association, and a note was given for $900, which was paid, upon the purchase, by the Church Association, which gave its guaranty for payment of the balance of the purchase price. Subsequently the church gave the association another note for $1,300, being the balance of the loan of $2,200, which it received. This money was used in building the rectory. Some weeks after the giving of the second note, at a meeting of the vestry, a communication

was read from the secretary of the Church Association, asking the vestry to sign a note for $2,200, in favor of Helen L. Frue, to take the place of the former notes. This note was executed by the vestry, and reads as follows: "$2,200. DETROIT, MICHIGAN, 1st January, 1889.

"For value received, we, the undersigned, vestry of Grace Church, Menominee, Michigan, promise to pay to the order of Helen L. Frue, of Detroit, Michigan, the principal sum of twenty-two hundred dollars, on or before the first day of January, eighteen hundred and ninetyfour, without grace, with interest at the rate of seven per centum per annum, payable on the first day of July next, and semi-annually thereafter, until the whole of said principal sum is paid; both principal and interest being payable at the office of the Detroit Savings Bank, in Detroit.

"This note is secured by a certain real-estate mortgage, of even date herewith, made by the Church Association of Michigan to said Helen L. Frue, and collateral thereto, the terms and conditions of which are made a part hereto."

It was sent to the secretary, and the Church Association thereupon executed to Helen L. Frue a mortgage for $2,200 upon the premises to secure this note. A deed was thereupon executed and delivered by the Church Association to Grace Church, and was accepted by its vestry, and it continued to occupy the premises for 10 years

or more.

No opposition was made to the entry of a decree of foreclosure, but Grace Church contended that it is not liable for any deficiency. A decree for foreclosure and sale was made, but the court refused to hold Grace Church liable for a deficiency, and held that it was not so liable, and the complainants have appealed. It is contended that the parish did not authorize the giving of any note by the vestry, and that there is no evidence that it knew of the giving of the note to Helen L. Frue.

The testimony shows that Grace Church, at a parish meeting, directed its vestry to make a loan from the Church Association of $2,200, at 7 per cent., and to deed to the association, in trust, the lots which it had bought.

120 MICH.-41.