SHERWOOD, J. This suit is an action of ejectment, brought by the plaintiffs against the defendants to recover lot 10 in. block 68 in the plat of Lower Saginaw, in Bay City. The plaintiffs claim under a tax deed made under a sale of the premises by the Auditor General for the unpaid taxes of 1877 and 1878. At the time the taxes were assessed and this suit was commenced, the defendant Paine lived in Saginaw and claimed to own the lot in question. She was leasing the land to other persons and had paid taxes on the property as hers. The other defendants were in the actual occupation of the property when the suit was commenced,defendants Pendleton and Stewart as lessees of Mrs. Paine, and the Mungers as sub-lessees of Pendleton and Stewart. On the trial, no proper title was shown in defendants or either of them. The defendants claimed that the tax title of plaintiff was irregular and void, and relied upon their possession to defeat the plaintiffs' action.

The question whether a party is in possession of land is one of fact, to be found by the jury under proper instructions from the court; and they have found upon this point in favor of defendants. We find nothing in the instructions of the court upon that subject to correct. The finding is concl sive.

The defendants being thus in the actual possession of the land, the plaintiffs can only prevail against such possession by valid deed, and the remaining question relates entirely to the validity of the plaintiffs' tax deeds. Is it valid?

In the investigation of this subject, upon the trial, it became necessary to show what action was taken by the common council of Bay City in reference to posting notices of the meeting of the board of review in 1877 and 1878, and for this purpose witness Cooley was called and it was shown that he had examined the proceedings of the board, and that they showed no action upon the subject. This was objected to as incompetent, and the objection was properly overruled. If such action was taken it could appear nowhere else; and if it was not, that fact could only be shown by an inspection of the books. Their official character was proved and, so far

as the record shows, Mr. Cooley was as competent to make that inspection as any other person. It was not necessary to produce the books before the court for that purpose.

It is further insisted that the defendants, in order to be permitted to make their alleged defense, must not only have the actual possession and occupancy of the premises, but they must so possess under some chain of title extending back to the source. This Court, however, has held differently. Gamble v. Horr 40 Mich. 564. It was only necessary for the defendants to show at common law actual possession under a claim of title, to enable defendants to make their defense. Buller's N. P. 103; Adams Eq. 281; Day v. Alverson 9 Wend. 223; Hall v. Kellogg 16 Mich. 139. And this Court has held that a prima facie case at the common law is sufficient to enable the defendants to make their defense. Gamble v. Horr 40 Mich. 561. We find no reason for changing the ruling heretofore made on that subject.

It is evident from this record that the chairman of the board of supervisors of Bay county, in the year named, did not fill out and attach the proper certificates of equalization to the State and county tax-rolls, as required by statute. See Comp. L. 995; How. St. § 1029. The equalization by the board is important and necessary, and the action of the board in making it must be duly recorded. Yelverton v. Steele 36 Mich. 62. It is by such record only that its action. can be made to appear. The certificate which furnished the evidence of the fact that the law has been complied with, to the tax-payer, is given in the statute and must be strictly complied with. The failure so to do will render the proceedings to sale void. The departure in this case is apparent and beyond remedy. It applies to the taxes of both years, and the deeds issued upon the sales made for the taxes of those years are null and void.

This is not a proceeding in equity for the purpose of enjoining the collection of a tax alleged to be illegal, as in Burt v. Wadsworth 39 Mich. 126; but if it were I should be inclined to agree with Chief Justice Campbell's views given in that case. It is a suit to deprive the party of the

title to her property against her will, for a mere nominal sum, under the color of legal authority. This can never be done in such a case without a full compliance with all the substantial requirements of the law.

The conclusion we have reached on this point renders it quite unnecessary to consider the other questions raised and argued on the hearing.

The judgment at the circuit must be affirmed.

CAMPBELL and CHAMPLIN, JJ. concurred. COOLEY, C. J. did not sit in this case.

53 33 96 410

NATHAN PHILLIPS V. VILLAGE OF KALAMAZOO.

Malicious prosecution-Probable cause.

1. An action for malicious prosecution will not lie if plaintiff was convicted before a justice of the peace, but was discharged on appeal, unless the conviction was procured by fraud, perjury or subornation, or was otherwise exceptional. And if any exception is relied on the plaintiff must allege the facts which create it.

2. The Supreme Court is not inclined to express its opinion on questions in the record that are not necessary to a final determination of the

case.

Error to Kalamazoo. (Mills, J.) Jan. 22.-March 6.

CASE. Plaintiff brings error.

Affirmed.

Hampden Kelsey for appellant.

Robert F. Hill and Henry F. Severens for appellee.

CHAMPLIN, J. The plaintiff brought an action for malicious prosecution against the defendant. In his declaration he alleged that the defendant wrongfully and maliciously caused him to be prosecuted and arrested for the violation of a village ordinance prohibiting peddling without a license in the village; that he was tried before a justice of the peace

53 MICH-3

and convicted, and on appeal to the circuit court he was acquitted and discharged. The declaration contains no averment that his conviction before the justice was procured by any fraud, perjury, or subornation, and he does not show that his case comes within any of the exceptions applicable to cases where a conviction has been had. Hence, by his own showing, there was not a want of probable cause.

The declaration contained three counts. The defendant demurred to the first, and pleaded the general issue to the second and third counts. The plaintiff entered a voluntary discontinuance upon the second and third counts, and joined in demurrer on the first count. The circuit judge sustained the demurrer and rendered judgment for the defendant.

Counsel for defendant points out the manifest defect in the declaration with reference to the conviction before the justice, but in addition requests us to pass upon the question of liability independently of this insuperable defect, on account of the important question of liability, on general principles of municipal law, involved in a complaint of this kind. It would be departing from our customary practice to express an opinion upon questions in the record which are not necessary for a final determination of the suit, however desirable it might be for counsel in particular instances to have us do so. As a general rule, a conviction before a magistrate is a bar to a malicious prosecution, and if the party complaining relies on an exception to it, he must allege the facts which create the exception. Cooley on Torts 185. No exception to the operation of the rule is claimed in this.

case.

The judgment is affirmed.

The other Justices concurred.

JOHN F. DAGGETT V. CHARLES S. DAVIS.

Conversion of stock certificate-Trover—Damages.

1. Trover will lie for the conversion of a certificate of stock; and it seems that plaintiff may count upon the conversion of the shares as well as upon that of the certificate.

2. Withholding possession of a certificate of stock cannot amount to a conversion of the stock itself so long as the certificate is not indorsed; but it may amount to a technical conversion of the certificate.

3. Conversion is not necessarily the complete and absolute deprivation of the property, but may be a partial or temporary deprivation, the owner retaining possession or regaining it; the difference is only a question of damages, which, in the latter case, are usually less than the whole value of the property.

4. Demand and refusal do not of themselves constitute a conversion, but are evidence thereof for a jury.

5. The measure of damages for the conversion of a mere certificate of stock cannot be placed at the value of the shares which it represents, if the ownership of the shares themselves is not affected.

Error to Muskegon. (Russell, J.)

Jan. 23.-March 6.

Reversed.

Smith, Nims, Hoyt & Erwin for appellant.

Cook, DeLong & Fellows for appellee.

COOLEY, C. J. The plaintiff in this case counts upon the conversion by defendant of a certificate of stock in the Muskegon Wood Package & Basket Company, of the nominal value of two thousand five hundred dollars, belonging to the plaintiff and standing in his name. The company is a corporation, and the plaintiff, prior to April, 1881, was its secretary and manager, and the defendant was its president. The plaintiff ceased to be secretary of the company about April 20, 1881, and when he surrendered the office, left this certificate in the company's safe. From the safe it was taken by defendant, as he claimed, without intention, and because