This notice was not served on the township. The bill of complaint charges that defendant did not redeem the land or any of it, that said McRae's title thereto became complete and absolute, but that said defendant,—

"Disregarding the rights of your orator in the matter, and conspiring wrongfully to injure your orator by asserting title to all of said land except said two acres, claims to be the owner thereof, and pretends that your orator has no title thereto, which claim and pretense constitute a cloud upon the title of your orator to his great damage, to wit, upwards of $500."

The relief prayed is that all right and title of said defendant to said lands may be decreed to be barred by the said conveyance to McRae and the service of said notice, and that complainant may be decreed to have a perfect and indefeasible title to the said premises. The bill does not charge that the land is occupied, or that it is unoccupied.

Defendant in his answer asserts ownership in fee simple to the lands except the portion belonging to the said township, and that the said tax titles are still subject to redemption by defendant, for the reason that the notice served upon him is invalid, and not in compliance with the governing law, and that no legal notice was ever served upon him or upon any officer of said township. He tenders and offers to pay to complainant any and all sums of money which the court shall find due to him to redeem said lands from said tax sales. Affirmative relief is asked, viz., that defendant may redeem the lands, and that complainant be decreed to surrender his said tax titles. In the answer no reference is made to the occupancy of the land. There is no averment that defendant, or any one else, is in actual possession thereof.

In the answer to the cross-bill it is admitted that no notice was ever served upon the township of McMillan, and it is alleged that an arrangement and settlement satisfactory to complainant and the officials of said township concerning said tax titles has been made. It is also ad

mitted that defendant Norton became owner of all the land December 24, 1888, and conveyed the two-acre parcel to said township May 13, 1897, by warranty deed.

The rule (Supreme Court Rule 35 [136 Mich. xxxvii]) which requires the printed record to show the dates of filing of pleadings in causes has not been complied with.

It is understood, however, that the said conveyance of a portion of the premises to the township of McMillan was made by complainant after the filing of the original bill in this cause and prior to the date of various amendments to the said bill. The court below found that defendant was, when the bill was filed, in actual possession of the lands. A decree was entered dismissing the original bill, and, in accordance with the prayer of the crossbill, quieting the title of defendant; defendant being required to pay $84.64 to complainant. The principal contentions presented, stated from the view point of defendant, are three:

First. That, if the defendant was in actual possession of the land, the bill must be dismissed.

Second. That the notice did not comply with the law (Act No. 236, Pub. Acts 1903), for which reason it was ineffective.

Third. That because the township of McMillan was not served with a notice the required notice was not given.

OSTRANDER, J. (after stating the facts). 1. It has been held not to be competent for the legislature to provide for the trial of the legal title to land in equity where the defendant is in possession of the land, at least not without providing for a trial by jury. Tabor v. Cook, 15 Mich. 322. And where a bill to quiet title charged that the land was occupied by defendant, and prior to the amendment made to 1 Comp. Laws, § 448, in 1887, where it charged that the premises were wild and unoccupied lands, demurrers to the bills were sustained. Tabor v. Cook, supra; Jenkins v. Bacon, 30 Mich. 154. The fact of defendant's occupancy is not put in issue by the pleadings.

Nevertheless the fact is jurisdictional, since, if he was in possession when the bill was filed, the suit cannot be maintained. The fact is disputed, but it is found by the court below that defendant was in actual possession of the premises, and that complainant should have brought ejectment. For this reason the original bill was dismissed, with costs to defendant. But complainant is appealing from a decree, which, besides dismissing his bill, denies his right to the land, requires him to convey his tax titles, and quiets the title in defendant. There can be no doubt of his right to do so, and we do not understand it is disputed.

2, 3. But for considerations to be presently stated, we might rest decision and affirmance of the decree below upon the fact that no notice was given to the township and upon the authority of White v. Shaw, 150 Mich. 270, 273 (114 N. W. 210). Counsel seek to distinguish the cases, but the following language, employed in deciding that case, is equally applicable here:

"The tax title holder cannot proceed by 'piecemeal' to cut off the right of redemption of each part owner. Until he has complied with the statute as to all, the right of redemption remains to all."

It will be perceived that the title asserted by complainant was acquired by his grantor before the amendments were made to the tax law by Act No. 236, Pub. Acts, 1903, which took effect June 18, 1903, and that the notice which was served upon defendant in July, 1903, did not conform to the law as amended. It was held in the majority opinion filed in Weller v. Wheelock, 155 Mich. 698 (118 N. W. 609), that this was an ineffective notice. See Curry v. Backus, 156 Mich. 342 (120 N. W. 796). It is said in behalf of complainant that three of the four justices who participated in the decision of Weller v. Wheelock later, in the opinion filed in the case of Boughner v. Bay City, 156 Mich. 193 (120 N. W. 597), held that the decision in the former case is not to be treated as settling the law. I do not myself see any con

flict between the rules announced in these cases. The statement of the justice who wrote the opinion, that, had the opinion in Weller v. Wheelock received the approval of five judges, it "might be held to have established such rule," and the suggestion that when, for any reason, but seven justices of this court take part in a decision and but four of them are of one opinion, the decision, however binding upon the parties to the particular case, is not to be regarded as establishing the law, is regarded by counsel as an invitation to treat the point decided in Weller v. Wheelock as still open. It is strenuously urged that the court in that case reached a wrong conclusion. The statute (Act No. 250, Pub. Acts 1903) provides that five judges shall constitute a quorum for the hearing of cases and the transaction of business, and that, whenever there shall be filed a dissenting opinion in a case heard by a quorum of five judges only, the parties therein shall have a right to a rehearing before the entire bench upon making a proper application therefor. No such case has arisen, because it has been the practice of the court, in cases submitted to five justices, who were unable to agree, to itself order a reargument of the case if it was originally submitted on oral argument, and to submit the case to the entire bench if it was originally received on briefs. The practice has resulted in expediting the business of the court and in securing, what is desirable, the concurring opinion of a majority of the judges. But it has occurred that a vacancy existed in the office of justice of this court, or that one of the justices was disqualified to take part in the decision of a case. All of the justices, there being at the time but seven, participated in the decision of Weller v. Wheelock. I find no good ground for declaring that in such a case the decision of a majority shall not be received as stare decisis, as establishing the law, not only for the particular case but for other like cases. There remains, of course, the right and the duty to overrule decisions found to be erroneous.

It is apparent from some of the briefs which have been

filed, that there exists a misapprehension concerning the scope and effect of the decision which is attacked. The court was called upon, as it is in the case at bar, to give effect to a statute. It was said:

* *

"It is suggested that this statute should not be construed as retrospective, but that it should only be held to have reference to titles acquired from the State after the statute took effect. *It is unquestionably broad enough to include, and we think it manifestly was intended to include, all notices required to be given after the statute took effect."

There was involved no question of the duty of the tax title holder to give notice to any person not entitled to notice when his tax title was acquired. It is expressly stated:

"It is not necessary in this case to determine whether, in so far as the amendment of 1903 attempted to confer a right upon another class, namely, purchasers under tax titles, it was ineffective, in that it impaired the obligation of contracts. That question is not involved in this case. What we are here dealing with is the form of notice, and the requirement that it shall in form be directed to the owner or owners of any and all interests described and that it shall give notice of the right to make payment to the register in chancery of the county in which the lands lie."

It is evident that the point received careful attention, and, this being so, I am not prepared to overrule the decision, although I did not at the time assent to it.

It follows that defendant is entitled to a reconveyance upon payment of the proper sum of money. As the decree provides for what defendant had the right to demand, it will not be reversed. Defendant will recover costs of this court.

BLAIR, C. J., and GRANT, MONTGOMERY, MOORE, MCALVAY, and BROOKE, JJ., concurred with Ostrander,

J.

HOOKER, J. The complainant is the owner of the premises described in his bill as tax title purchaser under