Brown v. Cohn

• Decision Date: 13 November 1894
• Citation: 60 N.W. 826,88 Wis. 627
• Parties: BROWN v. COHN ET AL.
• Court: Wisconsin Supreme Court

88 Wis. 627

60 N.W. 826

BROWN

v.COHN ET AL.

Supreme Court of Wisconsin.

Nov. 13, 1894.

Appeal from circuit court, Oneida county; Samuel D. Hastings, Jr., Judge.

Ejectment by E. D. Brown against L. S. Cohn and others. From an order relieving plaintiff from a stipulation waiving a trial by jury, and denying defendants' leave to amend, the latter appeal. Affirmed.

This is an action of ejectment in which the plaintiff had judgment for the recovery of the premises claimed, upon a trial before the court without a jury, a jury trial having been waived by stipulation of the parties. This judgment was reversed on appeal (Brown v. Cohn, 85 Wis. 1, 54 N. W. 1101, where the case is sufficiently stated), this court having held that the tax deeds under which the defendants claimed the premises were properly executed and valid tax deeds. After the cause had been remanded for a new trial, the defendants made a motion, founded upon sundry affidavits and papers on file, for leave to serve and file an amended answer, setting up by way of counterclaim that the plaintiff makes a claim of title to the premises in question, adverse to the defendants, on the ground that he has paid and redeemed the lands from the tax sales of 1875 and 1876, upon which the said tax deeds were issued, and that by reason of such payment said deeds are void, and that he claims and pretends to hold tax or redemption receipts, in writing, signed by the county clerk of Lincoln county, showing the payment and redemption of said lands from such sales prior to the issuing of such deeds, and bases his claim to the title to said land thereon; that such claim is false and fraudulent, in that in truth said taxes were never paid or redeemed, and that said pretended tax or redemption receipts, which purport to show the payment of such taxes, are false, forged, and fraudulent, and were never in fact executed or delivered by the county clerk of the county, or by any officer or agent thereof; that they purport to be signed by the county clerk of Lincoln county at the date thereof, and are in the ordinary and usual form of tax receipts issued by county clerks; that there was no record or any entry ever made of such pretended redemption by the county clerk in his office, or in any of the public offices of the county, or by any of the officers thereof, and that such receipts are not matters of record anywhere. It appeared that they had not been countersigned by the county treasurer, and that they were relied on by the plaintiff as proof of the invalidity of the title of the defendants; and it was claimed that they ought to be delivered up and canceled, and plaintiff perpetually enjoined and restrained from claiming or asserting any title to said lands, or any right therein, under the same; that plaintiff had used them to harass and annoy the defendants, and had introduced them in evidence on the former trial to show redemption of the lands in question; and that after the trial was closed, and their false and fraudulent character discovered, and a motion made for a new trial on account thereof, the plaintiff withdrew said receipts from the evidence, but that he intends in the future, and at the next trial of this action, to assert title through and by means of such receipts. It is alleged that witnesses who can testify as to their false and fraudulent character may die or leave the jurisdiction of the court, so that defendants' ability to show their true character may be greatly impaired unless the relief prayed for in the counterclaim is granted; that, as to a certain tax deed of a portion of said premises to one C. J. Winton, the plaintiff claims such deed to be null and void, because of the action commenced by him to annul the tax sales and restrain the issuing of a tax deed thereon; that said Winton was not a party to said action, and did not know of the pendency thereof, or of the injunctional order therein, at any time; that he obtained title to the certificates prior to the commencement of the action, and applied for and obtained said tax deeds without any knowledge of the proceedings in said action, and that no lis pendens or notice of the object and pendency of said action had been filed; and the defendants demanded judgment establishing their claim of title to said land against any claim of the plaintiff thereto, and that he be forever barred from claiming or asserting any right or title thereto adverse to the defendants, and to surrender and release his title to them, and deliver up to the court the pretended tax or redemption receipts, that the same may be canceled, and for general relief. The court made an order denying the application to so amend the answer, from which the defendants appealed. At the same term the plaintiff moved the court that he be relieved from the stipulation waiving a trial by a jury therein, and that the issues therein be tried by a jury, founded upon the affidavit of one of the plaintiff's attorneys, to the effect that the only questions to be litigated, and in contemplation of plaintiff and defendants when said stipulation was made, were three certain questions of law, namely: (1) Whether said tax deeds by virtue of which the defendant Cohn claimed title were void on their face; (2) whether two of said deeds were not rendered void by the payment of the money to the county clerk, as evidenced by the redemption receipts issued by him, but not countersigned by the county treasurer; (3) whether the third tax deed was not void by reason of its having been issued in violation of the injunctional order of the court,--and that said stipulation was made solely on the belief of the plaintiff that these were the only issues to be presented for determination; that, after the trial of the cause, divers affidavits had been filed on behalf of the defendant to open the case for further trial, charging that said receipts were forgeries, and the money to redeem the said lands had never been paid; that the plaintiff thereupon obtained leave to withdraw all evidence in relation to the payment of said money and said receipts, and then rested his case solely upon the validity of the tax deeds as they appeared upon their face; that the trial of the issue in respect to these matters would require the testimony of divers and numerous witnesses as to the genuineness of the signatures to said receipts, and as to whether they had been altered or changed by the plaintiff or his agents since issued, if ever issued; and that plaintiff desires such issues to be tried by a jury, and that the stipulation waiving trial by jury be vacated. The affidavits of the defendant Cohn and two of his attorneys were read in opposition, stating, in substance: That the action is peculiarly the subject of equity jurisdiction and cognizance, and the questions of law and fact in it so intimately blended, with reference to the Winton tax deed, that neither party could have adequate and full relief by a jury trial. That the issue made upon the two pretended redemption receipts could not be fully and fairly tried by a jury, and that the defendants would claim, and offer evidence to show, that such receipts are forgeries, and the plaintiff never did pay or redeem from said taxes; and in support of this contention it is stated that they will require at the trial the sales books from the office of the county clerk and county treasurer of Lincoln county for every year from 1875 to 1883, and the stub receipt books from the office of said county clerk, and that a vast amount of record evidence of this kind will be offered to show that the disputed receipts were forgeries; and that an examination of the forged receipts with a microscope would...