Doherty v. Rice

Citation240 Wis. 389,3 N.W.2d 734
PartiesDOHERTY et al. v. RICE et al.
Decision Date05 May 1942
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from a judgment of the County Court of Walworth County; Roscoe R. Luce, Judge.

Reversed.

Action for recovery of possession of land and for equitable relief by W. G. Doherty and others as trustees of the segregated trust of the Wisconsin State Bank of Delavan, against Jas. W. Rice, also known as John W. Rice, tax deed grantee in possession, and his wife, commenced June 18, 1940. From a judgment dismissing the complaint entered June 11, 1941, the plaintiffs appeal. The facts are stated in the opinion.

Everett P. Doyle, of Delavan, for appellants.

Thorson & Seymour, of Elkhorn, for respondents.

FOWLER, Justice.

In 1925 the owner of a tract of land bordering on a lake suitable for sale and occupation as summer residential property platted the property and placed the plat upon record. The plat contained no mention of restrictions as to alienation or use of the property but the deeds of the owner to all parcels conveyed contained a restriction against sale to or occupation by any one not a member of the Caucasian race, to use for residential purposes only, against the construction of residences of less than $600 cost, and against the construction or use of outside toilets, and these restrictions were included in all mean conveyances from the plator. The premises in suit were owned by the plaintiffs at the time of a tax sale and the issuance of a tax deed. The tax deed ran to the defendant Rice. The plaintiffs were also the owners at the time of the commencement of the suit of other parcels of the platted land. The defendant Rice is a negro and has built on the premises a house alleged to be of less than $600 cost, is occupying the premises as the residence of himself and wife and has in use thereon an outside toilet. The restriction in the deeds is in the form of a promissory covenant and contains no reverter clause. The action was brought against Rice and his wife to recover possession of the premises and prays judgment quia timet and for “such other and further relief as may be equitable.”

It is to be noted that while quia timet actions are in equity and under general equity practice can only be brought by claimants in possession, the plaintiffs although not in possession can bring such action under sec. 281.01, Stats., which extends the action to those out of possession. Kimball v. Baker Land & Title Co., 152 Wis. 441, 140 N.W. 47;Farr v. Hobe-Peters Land Co., 7 Cir., 188 F. 10. The prayer of the complaint thus invokes the equitable jurisdiction of the court and empowers the court to grant any equitable relief to which the plaintiffs may be entitled.

We have recently considered the effect of restrictions as to the use of property conveyed so far as holders under conveyances from private parties are concerned. The most recent case is Burden v. Doucette, 240 Wis. 230, 2 N.W.2d 204. From the opinions in this case and in Stein v. Endres Home Builders, Inc., 228 Wis. 620, 280 N.W. 316, the general principle is deducible that reasonable restrictive covenants as to the use of the land conveyed will be enforced in favor of landowners for whose benefit they were imposed. That restriction against use of the land for other than residential purposes will be enforced in favor of such owners is recognized by all the authorities and we need say no more as to the right of the plaintiffs to relief in that regard, premising, of course, that the restriction as to such use is a reasonable one and that the grantee takes from a private grantor holding under a chain of title from the original grantor who imposed the restriction. The plaintiffs besides contending that they are entitled to the relief demanded under the restrictive covenants in the deeds in their chain of title also claim that the tax deed is void (1) because the land was assessed in the name of one not the owner; (2) because the land was insufficiently described in the assessment roll and in the deed. We will dispose of these contentions before taking up their contention(3) that the tax deed is void because the grantee therein is a negro.

(1) The parcel of land involved was entered on the assessment roll in the name of Wisconsin State Bank, whereas the legal title was in the Wisconsin State Bank, Trustee. The plaintiffs' claim here is that because sec. 70.17, Stats., provides that “real property shall be entered in the name of the owner, if known to the assessor, otherwise to the occupant thereof if ascertainable, and otherwise without any name * * *” the assessment was void. The land is lake resort property and was unoccupied at the time of the assessment. Doubtless the name of the owner was “ascertainable” by the assessor by reference to the records of the Register of Deeds office. But even so, it is the land that is assessed, not the owner of the land. The effect of an entry where the owner's name is wrongly entered should be fully as potent as basis for a tax as an entry without naming the owner at all. But as said in Massing v. Ames, 37 Wis. 645, 652: “It would be laying down too strict a rule on the subject to say the assessor was chargeable with notice of the record title, and if he happened to make an honest mistake in regard to the real owner, the assessment was void.”

The mistake involved in the Massing case was entering a husband as the owner, whereas the owner was his wife. The assessment was upheld. The instant case seems sufficiently covered by N. Boyington Co. v. Southwick, 120 Wis. 184, 97 N.W. 903. The instant assessor had as much reason to believe the bank “to be the owner against whom the lot was properly assessable,” as the assessor in the Boyington case had to believe the same as to the Boyington Company. The bank as trustee under the entry here involved had the same knowledge of the assessment and subsequent proceedings that Atwell had in the Boyington Co. case and that it would have had had it been named owner as trustee instead of as owner. The error could not mislead the bank as trustee anymore than Atwell was misled. The appellants cite Crane v. Janesville, 20 Wis. 305, in support of their contention but the case is not in point. There two lots were together assessed in a lump sum. The person named as owner owned one of them but not the other. Manifestly the owner could not be required to pay a tax on two lots, one of which he did not own to protect the lot he did own from sale. This and like cases are distinguished in the Massing case, supra.

(2) According to the recorded plat the instant parcel of land is “Block 5, Delavan Lake View Crest Subdivision.” The plat covers land in the Town of Delavan, Walworth county, and is recorded in the Register of Deeds office of Walworth county. It is claimed that omission of the words “Delavan” and subdivision renders the description so indefinite and uncertain as to void the tax deed. The land is described in the certificate of tax sale as Block 5, Lake View Crest, Sec. 31, Town 2, Range 16,” and in the tax deed as “Block 5, Lake View Crest, town of Delavan, Walworth Co., Wis.” There are two other platted tracts in the town of Delavan, Walworth Co., Wis.” There are two other platted tracts in the town of Delavan. One is named “Lake View” and the other “Lake View Subdivision.” Both of these are indexed under “L” in the Register of Deeds office. Delavan Lake View Crest” is indexed under “D”. It is urged that on examination of the records it would naturally be assumed that the property described in the certificate and deed was located in “Lake View” or “Lake View subdivision,” and that the tax deed is therefore void. This seems to us untenable. Whether the descriptions are sufficient depends on whether the descriptions “indicate the land intended with ordinary and reasonable certainty and which would be sufficient between grantor and grantee in an ordinary conveyance.” Sec. 70.25, Stats. The insertion of the word “crest” in the description would seem to indicate that neither Block 5 in “Lake View” nor “Lake View Subdivision was intended and that “Lake View Crest Subdivision was, and the inclusion of Sec. 31, Town 2, Range 16,” in the certificate and Town of Delavan, Walworth County, Wisconsin”, in the deed would sufficiently indicate the location of that subdivision. It is not necessary that the land be described in the same language on the assessment rolls and certificate or deed, if each description is in itself sufficient. Mitchell v. Pillsbury, 5 Wis. 407. Counsel on both sides cite several cases which they contend support their respective contentions as to the sufficiency or insufficiency of the instant description, none of which is precisely like the instant case in point of fact. As indicating the governing principle under the statute cited, Corry v. Scudder, 151 Wis. 104, 105, 138 N.W. 68, and Mendota Club v. Anderson, 101 Wis. 479, 487, 78 N.W. 185, are most nearly in point. We consider the description sufficient.

(3) The restrictions involved are of three classes (a) that restricting sale to a non-Caucasian; (b) that restricting occupation by a non-Caucasian; and (c) that restricting use for residential purposes, forbidding construction of residences of less than $600 cost and forbidding construction or use of outside toilets.

(a) The plaintiffs contend that the restriction against sale to a non-Caucasian rendered the title of the grantees void. The defendants' counsel contends that the restriction as to sale is invalid because violative of the Wisconsin Constitutional provision relating to conveyances in restraint of alienation and because violative of the XIVth Amendment of the United States Constitution. They concede that as to the XIVth Amendment the weight of authority is against them. The concession is not only fully warranted, but is compelled. The only case supporting it is Gandolfo v. Hartman, 1892, 49 F. 181, 16 L.R.A. 277, a decision of the United States...

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11 cases
  • Solowicz v. FORWARD GENEVA NAT., LLC, 2008AP10.
    • United States
    • United States State Supreme Court of Wisconsin
    • 24 Marzo 2010
    ...inquiry is inapplicable here. Doherty v. Rice, which reiterates the inquiry in Huntley, is also a restraint of trade case. Doherty, 240 Wis. 389, 3 N.W.2d 734 (1942). The deed in that case prohibited sale to and occupation by non-Caucasians, construction of residences that cost less than 78......
  • Alvin v. Johnson, 36163
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    • Supreme Court of Minnesota (US)
    • 19 Febrero 1954
    ...54, 169 P.2d 781, 168 A.L.R. 513; Union Falls Power Co. v. Marinette County, 238 Wis. 134, 298 N.W. 598, 134 A.L.R. 958; Doherty v. Rice, 240 Wis. 389, 3 N.W.2d 734; Engel v. Catucci, 91 U.S.App.D.C. 54, 197 F.2d 597; 3 Cooley, Taxation (4 Ed.) §§ 1154, 1494; 22 Minn.L.Rev. 578.2 Wolfson v.......
  • State v. Coubal
    • United States
    • United States State Supreme Court of Wisconsin
    • 11 Enero 1946
    ...proceeding; costs are discretionary with the court. Sec. 271.02, Stats. The court may deny costs, including disbursements. Doherty v. Rice, 240 Wis. 389, 3 N.W.2d 734. The Fourteenth Amendment to the Federal Constitution does not confer upon litigants a property right in any particular form......
  • City of Olympia v. Palzer, 52684-2
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    • 13 Noviembre 1986
    ...193 Misc. 239, 81 N.Y.S.2d 257 (N.Y.Sup.Ct.1948); Hayes v. Gibbs, 110 Utah 54, 169 P.2d 781, 168 A.L.R. 513 (1946); Doherty v. Rice, 240 Wis. 389, 3 N.W.2d 734 (1942); Alamogordo Imp. Co. v. Prendergast, supra; Northwestern Imp. Co. v. Lowry, supra; Schlafly v. Baumann, 341 Mo. 755, 108 S.W......
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