Draper v. Rodd
| Decision Date | 19 November 1924 |
| Parties | DRAPER v. RODD, SHERIFF. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Oneida County; Chester A. Fowler, Judge.
Action by Fred W. Draper, administrator, against Hans Rodd, as Sheriff of Oneida County. From a judgment for defendant, plaintiff appeals. Reversed and remanded with directions.
The facts in this case, as stated in the opinion of the trial judge, are as follows:
The plaintiff is the administrator of the estate of Roy Kayhart, who died subsequent to May 1, 1921. On said May 1st Kayhart was the owner of a mill run of lumber situated in the town of Schoepke, Oneida county. When the town treasurer received the tax roll, and when she delivered it over to the county treasurer, no tax and no assessment were entered on the tax roll against the name of Kayhart. His name appeared thereon, in the proper place among the names of persons against whom personal property was assessed and taxed, and no entries were extended in connection therewith.
While the tax roll was in the hands of the town treasurer, the plaintiff administrator sent one Mitchell, who was in charge of the lumber at all times until it was levied on by the sheriff as hereinafter stated, to the town treasurer to ascertain the amount of tax assessed against Kayhart. Mitchell learned the condition of the tax roll, and reported the facts in that regard to the plaintiff and the widow of Kayhart. After the tax roll got into the hands of the county treasurer, entries were made by some one, unbeknown to the plaintiff, of $4,000 as the assessed value of the lumber, and $292 as a tax levied thereon against Kayhart. This not being paid to the county treasurer before he placed the delinquent tax warrant in the hands of the sheriff, the amount was included in the warrant, as a delinquent tax against Kayhart, so appeared thereon when the warrant was delivered to the sheriff. The sheriff's warrant was fair on its face.
On receipt of the warrant the sheriff wrote to the widow, Kayhart, respecting paymentof the tax. The sheriff claims, and the jury must have so considered in view of their findings, that she wrote him promising to pay the tax, wherefore he delayed executing the warrant. But payment not being made on October 5, 1922, he levied under his warrant on the whole lot of lumber, consisting of 18 piles or thereabouts, which was worth at least $4,000.
The sheriff delayed noticing sale pursuant to his levy for the benefit of the plaintiff, doing so on the request of said Mitchell, who stated to him in substance, as the jury must have believed, that the plaintiff was in Canada and would attend to payment on his return. But the tax not being paid the sheriff noticed the whole lot of lumber for sale in November 30th, giving the proper statutory notice. But considering that the day was a legal holiday, Thanks-giving, and that sale could not be made thereon, the sheriff did not attend at the time and place of sale, nor did the public.
The day following, December 1st, the sherif went to the place where the lumber was, and where the sale thereof had been noticed, with attention of “adjourning the sale,” as he expresses it. But the said Mitchell was there and suggested that the sheriff go on with the sale. Several persons were present. The sheriff, believing that Mitchell was acting for and representing the plaintiff, thereupon proceeded to sell the property. He first solicited bids for separate piles of lumber, but, receiving none, he then solicited bids on the whole lot. Some few bids were made for the whole, and the whole was finally struck off for $430 to one O'Neill, who bid for and pursuant to agreement with said Mitchell, and Mitchell furnished the funds for payment of the amount. The sheriff understood that the lumber was bid in for the plaintiff.
Prior to the levy on the property by the sheriff, Mitchell had contracted for the plaintiff to sell the lumber at agreed prices for the different kinds and grades. Subsequent to his purchase he effected a sale to the same party which was only completion of this contract; the only change being that he received $105 per 1,000 first quality birch instead of $100 as first agreed, and received for the lumber $5,600.
The plaintiff was told by Mitchell of the sheriff's levy and advertisement for sale, and on receiving such information determined to let the sheriff sell the property. He did not inform the sheriff that he claimed the tax was illegal or of the facts whereon his claim of illegality was based, nor did he in any way forbid the sale. He was not present at the sale, but knew that Mitchell bid in the property. He received and retained the surplus proceeds of the sale after deduction of the tax and fees of the sheriff. He laid no claim to the property against Mitchell, and permitted him to sell it pursuant to the original contract of sale made by Mitchell.
Mitchell was in charge of the lumber when the sheriff levied thereon, and had authority to act for the plaintiff in selling it and had so acted in contracting for its sale prior to the levy as aforesaid. The plaintiff and Kayhart's widow both resided in Clark county. No one but Mitchell, who lived at the mill, was or had ever been in immediate possession or charge of the lumber. The plaintiff never had any communication with the sheriff, and did not expressly authorize Mitchell to act for him in any way after the levy by the sheriff.
The jury found by special verdict that the sheriff did not have notice at time of levy or time of sale that the tax was not regularly entered on the tax roll, and that by the exercise of ordinary prudence and diligence he would not have discovered such fact prior to either such time; that the fair market value of the lumber at the time of the levy was $4,000; that the sheriff did not sell a larger amount than a person of ordinary care and prudence would have sold under like circumstances; that the sheriff did not commit any willful wrong in selling the property; and that the sheriff used due care and diligence in protecting the lumber.
From a judgment entered in favor of the defendant, the plaintiff appeals.
F. D. Calway, of Neillsville, for appellant.
A. J. O'Melia, of Rhinelander, for respondent.
OWEN, J. (after stating the facts as above).
[1] The trial judge denied motions to change the answers of the jury to the questions of the special verdict. He concluded that the warrant of the county treasurer was regular upon its face, and protected the sheriff in making the levy, irrespective of the validity of the pretended tax; but “that the sheriff, by failing to attend on November 30th at the time and place set for sale, and then either go on with the sale or proclaim an adjournment, lost his right to sell the property except under readvertisement, and that the sale on December 1st, without any readvertisement, rendered him a ‘trespasser ab initio.’ ” He denied judgment in favor of the plaintiff, however, because he was of the opinion that the provisions of section 74.73, Stats., were applicable to the situation. In brief, that section provides that in actions to recover an unlawful tax, the plaintiff can recover only such sums as he paid over and above the taxes which were justly chargeable against the property taxed, and if the court is unable to determine such sum with reasonable certainty, the action shall be continued for a sufficient time to permit a reassessment of the property affected by such void assessment. In other words, the court held that, while the sheriff acted as a mere trespasserin selling the lumber, nevertheless this action, brought for the purpose of recovering damages for the conversion, is to be treated as an action to recover a tax. This was clearly error. This was not an action to recover a tax, and the statute referred to has no application whatever.
[2] Granting that the sheriff had a right to seize and sell the lumber under the warrant of the county treasurer, it was necessary for him to proceed in accordance with the requirements of law. The law required that he give notice of the time and place of sale. If he failed to give such notice, the warrant of the county treasurer afforded him no protection. If he assumed to sell the lumber without giving the proper notice, he became a trespasser and the liabilities of a trespasser attached. It is in this capacity that he is called upon to respond in this case. While it may be assumed that he had a warrant justifying him in seizing and selling the property for the purpose of collecting the tax, it was necessary for him to proceed in the manner provided by law in order that he be...
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Hoffman v. Ralston Purina Co., 76-220
...of the claim. Corbin, Supra, sec. 1277, p. 118. The decisions of this court are in agreement with Corbin's analysis. In Draper v. Rodd, 185 Wis. 1, 200 N.W. 761 (1924), it was held that there could be no accord and satisfaction where the payment made could not be known to be in full satisfa......