Coleman v. Peshtigo Lumber Co.

• Decision Date: 01 January 1887
• Citation: 30 F. 317
• Parties: COLEMAN v. PESHTIGO LUMBER CO.
• Court: U.S. District Court — Eastern District of Wisconsin

30 F. 317

COLEMAN v. PESHTIGO LUMBER CO.

United States Circuit Court, E.D. Wisconsin.

January, 1887

William H. Webster, for plaintiff.

George G. Greene, for defendant.

DYER J., (orally.)

This is an action of ejectment to recover the possession of certain lands in Marinette county, in this state. The plaintiff claims title under a tax deed issued to him September 26 1873, based on tax sales made in 1870 for the taxes of 1869 and omitted taxes of 1868. The defendant is the grantee of the original owner, who acquired his title by patent from the United States. The patent was issued May 2, 1870, and the defendant's conveyance is dated April 15, 1871. The lands were wild and unoccupied until 1885, and were entered by the party who received the patent, prior to 1868. The defendant in ignorance of the plaintiff's tax deed, paid all taxes assessed on the lands from 1870 to 1885, both years inclusive. The court has carefully considered the several questions involved in the case, and has come to the following conclusions, which will be briefly stated:

1. The court is of the opinion that the lands in question were taxable during the period intervening the date of their entry and the issue of the patent. I regard this question as so fully settled by authority as not to require discussion. Carroll v. Safford, 3 How. 441; Witherspoon v Duncan, 4 Wall. 210; Ross v. Board of Sup'rs, 12 Wis. 26; West Wis. R. Co. v. Trempealeau Co., 35 Wis. 258; and Wisconsin Cent. R. Co. v. Price Co., 64 Wis. 594, 26 N.W. 93.

It is contended by the defendant that after the entry, and prior to the issue of the patent, the purchaser had but an equitable title; that, therefore, only the equitable title was subject to taxation; and that the sale for the non-payment of such a tax, and a tax deed founded on such a sale, would convey only that title, which is insufficient as the basis of an action of ejectment to recover possession of the land. But this view ignores the doctrine of title by relation. And the decisions are to the effect that the patent confirms the entry, and relates back to the time of the entry; so that, if the lands are sold for taxes assessed intervening the date of the entry and the issue of the patent, the purchaser at such sale takes a legal title as against the former owner.

2. I am also of the opinion that the plaintiff is not estopped from maintaining this action, or asserting title under his tax deed, by reason of having suffered the defendant to pay all subsequent taxes levied on the land. The basis of a legal estoppel is wanting. The plaintiff has done nothing except to remain passive. His failure to actively assert title to the land cannot be considered conduct on his part inducing the defendant to pay the taxes. And, to create an estoppel, it must appear that one party has been influenced or induced to pursue a certain course of action by the conduct of another, which means, in a case like this, something more than passive inaction.

3. Upon the authority of Oconto Co. v. Jerrard, 46 Wis. 317, I must hold that the tax deed in this case was sufficiently recorded to give constructive notice of the tax title held by the plaintiff. The opinion in that case seems to me somewhat inconsistent with other rulings of the same court upon the subject; and, as an original question, I should be disposed to hold that the entry of the words 'See record,' in the column of the general index designed for a description of the property conveyed, is insufficient to create or establish constructive notice, even though the conveyance were spread at large upon the proper volume of records in the register's office. But the supreme court of the state, in passing upon and construing the statute which requires a general index to be kept in the offices of registers of deeds, has held in the Jerrard Case, not without protest against the delinquency of the register, that the entry, 'See record,' is sufficient for the purpose of putting all parties interested upon inquiry. And I do not see how the binding effect of this rule is to be escaped from in the present case. It is true that in the case at bar it appears that the entry of the tax deed in question upon the general index, in the form in which it was entered, so far as a description of the premises was concerned, was not a solitary instance of such a manner of the habit of the register, in perhaps a majority of cases where tax deeds were deposited with him for record, to insert in the column intended for description of the lands conveyed, in the general index, the words, 'See record;' and it is insisted by counsel for the defendant that this distinguishes the present case from the Jerrard Case. But if, according to the opinion of the supreme court, such form of indexing is good and sufficient in the case of one deed thus indexed, why is it not good and sufficient as to all deeds similarly indexed? All that can be said is that the negligence of the register is more flagrant and gross in the one case than the other. But this consideration does not reach to the legal proposition involved, which is whether, in any case, such a form of indexing is sufficient; and, as the supreme court of the state has held with reference to the conveyance before them in the Jerrard Case, that such a form of indexing was sufficient when taken in connection with the fact that the conveyance had been recorded at large in the proper volume of records, I am unable to see why it does not follow, as a necessary result from that ruling, that the same form of indexing of the tax deed involved in this case is sufficient, although it appears that in numerous other instances the register has been guilty of similar neglect of duty.

4. As to so much of the lands described in the complaint as consist of the N.E. 1/4 of the S.W. 1/4, the N.W. 1/4 of the S.W. 1/4 and the S.W. 1/4 of the S.W. 1/4 of section No. 13, township 35 N., of range 17, I hold the tax deed in suit void, for the reason that it appears on the face thereof that for the taxes of two years, namely, 1868 and 1869, both due at the time of the sale, the said lands were twice sold and two certificates of sale issued.

The assessment of these lands for taxation in 1868, and the levy of taxes thereon for that year, were omitted. By authority of law an assessment and levy were made in 1869, not only for the taxes of that year, but for the omitted taxes of 1868. I regard it clear, in the light of the statutes of this state bearing on the subject and applicable to the transaction, in connection with the authorities that have been submitted, that there should have been but one sale of each of these parcels for the aggregate of the two years' taxes on that parcel, and the issue of one certificate of sale on each parcel. The making of two sales and the issue of two certificates were violations of law, and such violations are patent on the face of the deed. In other words, it appears from the deed itself that the sales made of the parcels named, were unauthorized, because not conforming to the requirements of the statute.

The learned counsel for the plaintiff has, however, made a very ingenious argument to escape from this conclusion, which is based upon the theory that this double sale did not invalidate the sale for the taxes of 1869; and that, while the court may be constrained to hold the sale for the omitted taxes of 1868, assessed in 1869, invalid, it may still hold the sale for the taxes of 1869, good, and as sufficiently supporting the tax deed as a muniment of title. But I regard this argument fallacious, because it really rests upon the assumption that the non-payment of the omitted taxes of 1868 constituted a prior lien or delinquency to the taxes of 1869. There could have been no delinquency for the omitted taxes of 1868 until they were assessed and returned delinquent in 1869. The two sums were assessed and returned delinquent concurrently, and therefore became payable at the same time. The liens for the taxes of both years became such simultaneously. And so the rule that a separate sale for the last delinquency, if authorized, would extinguish a former delinquency, does not apply. Furthermore, it is not a sale merely for one year's taxes that cuts off liens for prior taxes. That result is effected by the sale, and the conveyance which follows the sale. Herein I regard the argument of counsel in support of his views upon this question as unsound. The statutory power to sell once for the aggregate of two years' taxes was not well exercised. And, as the delinquencies and liens were concurrent, the court cannot any more pick out the taxes of 1869, and say that the sale for those taxes was valid, and the sale for the taxes of 1868 was invalid, than it...