Corry v. Shea

• Decision Date: 06 December 1910
• Parties: CORRY v. SHEA ET AL.
• Court: Wisconsin Supreme Court

144 Wis. 135

128 N.W. 892

CORRY

v.SHEA ET AL.

Supreme Court of Wisconsin.

Dec. 6, 1910.

Appeal from Circuit Court, Ashland County; John K. Parish, Judge.

Action by John Corry against William F. Shea and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

Among other references upon the part of the appellant were the following: Jones v. Jones, 64 Wis. 301, 25 N. W. 218;Pierstoff v. Jorges, 86 Wis. 128, 56 N. W. 735, 39 Am. St. Rep. 881;Fallass v. Pierce, 30 Wis. 443.

Among other references upon the part of the respondent were the following: Metzger v. Hochrein, 107 Wis. 267, 83 N. W. 308, 50 L. R. A. 305, 81 Am. St. Rep. 841;Sullivan v. Collins, 107 Wis. 291, 83 N. W. 310;Madden v. Kinney, 116 Wis. 561, 93 N. W. 535.Sanborn, Lamorux & Pray (Horace B. Walmsley, of counsel), for appellant.

William F. Shea, for respondents.

TIMLIN, J.

The complaint averred that the above-named respondent was the owner of certain described lots and intentionally failed to pay the taxes thereon, whereupon the lots were sold at tax sale to the county of Ashland in the years 1905, 1906, 1907, and 1908 and tax certificates issued. The plaintiff purchased the first tax certificates on December 22, 1905, and on May 7, 1908, the respondent, with intent to hinder and delay the foreclosure of these tax certificates, conveyed the lots in question without consideration to his infant son. Prayer that the deed of May 7, 1908, be set aside and declared void.

Section 1166, St. 1898, provides that the lands of minors, or any interest they may have in lands sold for taxes, may be redeemed from tax sale at any time before such minors come of age and during one year thereafter. Persons under no legal disability have three years from sale, and until the tax deed is recorded, within which to redeem. The tax sale certificate is a lien against the land, but no debt or personal charge against the owner of the land. The holder of a tax sale certificate may, after the expiration of three years from the sale, either foreclose his tax certificate or apply to the county clerk for a tax deed thereon. Had the rule applicable to the statute of limitations been followed by this court in the construction of section 1166, supra, the period of redemption could not be prolonged after the statute had once begun to run against the adult owner by his conveyance of the land to an infant. The prior lienholder could not be hindered by the conveyance to the infant in such case. To such a case the rule of Hodson v. Treat, 7 Wis. 263, would apply. But this construction was not given to the statute.

In Jones v. Collins, 16 Wis. 594, it was expressly ruled that lands which descended to infants after the lands had been sold for taxes might be redeemed by the infants at any time before they came of age or during one year thereafter. Tucker v. Whittlesey, 74 Wis. 74, 41 N. W. 535, 42 N. W. 101, where it appeared that the ancestor died March 23, 1876, the infant plaintiffs were allowed to redeem from the tax sale of 1874 on which deed was issued December 11, 1877, the tax sale of May, 1875, on which deed was issued May 13, 1878, tax sale of May, 1875, on which tax deed was issued March 6, 1880. All deeds were upon sales made before the death of Tucker, and the limitation of his right to redeem had begun to run against him prior to his death. Karr v. Washburn, 56 Wis. 303, 14 N. W. 189, might perhaps be distinguished on the ground that at the time of the sale the infants had an equitable interest in the land unenforceable because of the statute of frauds; but the tax title holder could not take advantage of this. In Begole v. Hazzard, 81 Wis. 274, 51 N. W. 325, the ancestor died and created the parol trust for his children in March, 1877. The children were allowed to redeem from the tax sale of 1874 upon which a deed had been issued in 1878. These cases are cited in Hoffman v. Peterson, 123 Wis. 632, 102 N. W. 47, where, however, the infant owned the land at the time of the sale, but subsequently conveyed it by warranty deed and within the year succeeding his majority was allowed to redeem. In Menasha W. W. Co. v. Harmon, 128 Wis. 177, 107 N. W. 299, the questionwas presented in a brief filed; but the court in disposing of the case did not reach it. Swearingen v. Robertson, 39 Wis. 462, includes both sheriff's deed and tax deed, applies the ordinary rule; but I do not find that it was since cited or followed. The brief of Hastings & Green in Karr v. Washburn, supra, cited Swearingen v. Robertson, supra, to the proposition that the statute of limitations, having begun to run against the ancestor, would continue to run against the heirs notwithstanding the minority of the latter. But the court did not in that case adopt this view. In none of the cases so far as we can discover was the right of the infants to redeem challenged by pleading on the ground that the conveyance to them was made with intent to hinder, delay, or defraud the tax certificate holder.

If no statute forbade a transfer for the purpose and with the intent of extending the period of redemption from a tax sale, it is probable that in the exercise of the jus dispondendi the defendant might lawfully do so. He did not owe the tax title purchaser the duty owing in equity to a creditor, sometimes expressed as the duty to be just before he is generous. Speaking of a voluntary assignment by an insolvent debtor for the benefit of creditors in which a portion of the creditors was preferred, it was said: “In the absence of any statute to the contrary, there can be no question but that an insolvent debtor may pay one creditor in money or property in preference to another. Spring v. Insurance Co., 8 Wheat. 268 . This right of the debtor to prefer results from the absolute ownership of property. Brashear v. West, 7 Pet. 608 . This absolute ownership implies the absolute right of...