Fass v. Seehawer

• Decision Date: 15 May 1884
• Citation: 19 N.W. 533,60 Wis. 525
• Parties: FASS AND ANOTHER, IMPLEADED, ETC., v. SEEHAWER AND OTHERS.
• Court: Wisconsin Supreme Court

60 Wis. 525

19 N.W. 533

FASS AND ANOTHER, IMPLEADED, ETC.,

v.SEEHAWER AND OTHERS.

Supreme Court of Wisconsin.

Filed May 15, 1884.

Appeal from circuit court, Milwaukee county.

This action was brought to foreclose a tax certificate issued to the city of Milwaukee on a sale of a certain lot therein specified, for non-payment of a special assessment thereon for a street improvement. The city duly assigned such certificate to the plaintiffs, who are the owners and holders thereof. The complaint is in the usual and proper form. The answer of defendants Seehawer and wife contains several counter-claims alleging various errors and irregularities in the proceedings of the city authorities in ordering and making the improvement, and the assessment therefor, which it is claimed render the tax sale and certificate invalid. The relief demanded is that such tax certificate be adjudged null and void, and that the same be surrendered and canceled.

The alleged grounds upon which the demand of the defendants for relief is mainly based are the following: (1) The defendant John Seehawer, who theretofore was the owner of the lot described in the tax certificate, and his wife, sold and conveyed to one Meyer a strip thereof one foot wide, abutting the improvement, long before the work was ordered, and the improvement does not abut the portion of the lot retained by Seehawer; hence only the strip conveyed to Meyer is liable to assessment for the cost of the improvement; (2) that no sufficient petition for the improvement was presented to the common council of the city, as required by the city charter, and therefore the council had no power to order the improvement; (3) the board of public works of the city failed to give the owner of the lot proper notice to do the work himself, (should he desire to do so,) before letting the contract therefor, or to allow him a reasonable time within which he might do it; (4) the work was not done within the time required by the contract, or limited by the common council.

The character and extent of the improvement, and all of the proceedings preliminary to the issuing of the tax certificate, and the assignment thereof to the plaintiffs, sufficiently appear in the findings of fact by the court. These are as follows:

“(1) That the plaintiffs are the holders and owners of a pretended tax certificate, issued January 25, 1875, for the sale of the whole of lot 2, block 12, in the Sixth ward of the city of Milwaukee, to the city of Milwaukee, for $350.23, and taken and held by said city for the use of the holder of certificates of the board of public works of said city, numbered 102, 111, and 124, amounting to $349.98, and transferred to the plaintiffs by the indorsement of the treasurer of said city.

(2) That said tax certificate was issued upon certain certificates of the board of public works, which were issued, respectively, for the grading, paving gutters, graveling, and planking sidewalk in front of said lot 2; said work being part of the improvement of Walnut street, between Third street and Short street, (now Island avenue,) in said city.

(3) That said improvement was ordered by the common council of said city in the month of May, 1871, upon the petition of Joseph Schlitz, William Rosch, and Carl Busack, praying, among other things, that Walnut street, between Third and Short streets, be graded to the established grade, the gutters paved, roadway graveled, and sidewalks planked.

(4) That said improvement so petitioned for was wholly within the Sixth ward of the city of Milwaukee, extended a distance of three blocks, and covered a frontage of 900 feet on each side, exclusive of street crossings, each block having a frontage of 300 feet.

(5) That, at the time said petition was made and presented to said common council, said Joseph Schlitz did not reside in said Sixth ward, and said William Rosch and Carl Busack, who did reside in said ward, then each owned premises having a frontage of 150 feet on said Walnut street, between Third street and Short street, on opposite sides of Walnut street.

(6) That, at the time said petition was made and presented to said common council, the majority of feet in front of all the lots in each and every block fronting upon such improvement, between Second street and Short street, (there being between Second street and Short street two blocks on the north side and two blocks on the south side of Walnut street,) were owned by non-residents of said Sixth ward.

(7) That said petition praying for said improvement was not signed by owners, resident in said ward, of a majority of feet in front of any block adjoining or opposite to any of the said four blocks lying between Second street and Short street, and fronting on said improvement.

(8) That at the time said petition was made, and for about ten months prior thereto, said defendant, John Seehawer, was, and still is, the owner in fee of the south 49 feet of said lot 2, in said block 12, and that ever since June, 1870, up to August 2, 1876, one William Meyer was the owner in fee of a strip of land one foot wide, taken off from said lot 2, on the north side thereof, adjoining said Walnut street, said strip having been conveyed to him by said Seehawer and wife by a deed of conveyance thereof in due form, which was duly witnessed, acknowledged, and delivered, and recorded in the office of the register of deeds, in June, 1870, and has ever since so remained of record; that such deed to William Meyer was made by the defendants Seehawer and wife for the express purpose of evading the lien of such improvements, without consideration, and upon the understanding that the premises should, on request, be conveyed; that such conveyance was made before the date of the petition for such improvement; that on the second of August, 1876, said Meyer caused a reconveyance of said strip to defendant to be recorded.

(9) That, as a part of the proceedings incident to causing said improvement to be made, the board of public works of said city caused a notice to be published in the city official papers for six days, commencing on the twenty-sixth day of May, 1871, wherein the owner or agent of any lot or parcel of land, fronting on said improvement, was required to do the work mentioned in said notice, to-wit, the grading of the street to the center thereof to the established grade, and graveling the same, paving the gutter, and planking the sidewalk, and have all of said work fully completed on or before the first day of July, 1871.

(10) That at the time said notice last aforementioned was made and first published, and thenceforth until said first day of June, 1871, Second street, lying immediately west of said lot 2, and First street, lying next east of said block 12, of which said lot 2 is a part, were both very much below the established grade, and the crossings of said streets were included in the same improvement of said Walnut street, and in the resolution of said common council ordering said improvement to be made.

(11) That the work required in said improvement to be done in front of said lot 2, embraced 5,820 cubic yards of filling, 111 cubic yards of graveling, 91 2/3 square yards of gutter paving, and 165 lineal feet of planking of sidewalk; and, at the time said notice was given, said Walnut street, in front of said lot 2, was upwards of 18 feet below said established grade.

(12) That the time limited in said notice so given by said board of public works, within which the owners of said lot 2 were required to do all the work aforesaid, was not a reasonable time, but, on the contrary, was an unreasonably short time for doing said work.

(13) That the owners of all the premises fronting on said improvement, between Second and Short streets, having failed to do any of said work within the time limited in said notice, the board of public works, on August 21, 1871, entered into two several contracts with one Frederick Krause and one William Caspar, for doing the greater part of the work of said improvement, and completing the same on or before January 1, 1872; that in November, 1871, said board of public works, pursuant to a resolution of said common council, extended the time for the completion of said work so contracted for until April 20, 1872. The time for completing the work required in either of said contracts was never extended beyond that time; that afterwards, in the spring of the year 1874, none of said work having been completed under either of said contracts, the said Frederick Krause, with the consent of said board of public works, assigned his said contract (which was for the grading and paving of gutters in the greater portion of said improvement) to the plaintiff, Frank M. Fass; and then and there said board of public works entered into a new contract with the plaintiff Henry Jante for the graveling required in said improvement.

(14) The work described in said contract was completed in October, 1874, whereupon certificates of such completion, relating to the work in front of said lot 2, in the usual form, were issued by said board of public works, which certificates are the same certificates, numbered 102, 111, and 124, hereinbefore mentioned.

(15) That the amounts specified in said several certificates remaining unpaid were afterwards entered upon the tax-roll of said ward, and, the said tax also remaining unpaid, the whole of said lot No. 2 was afterwards sold for the non-payment of said tax, and upon such sale the said tax certificate mentioned in the first finding of fact herein was issued.

(16) That said tax certificate remains unredeemed, and is an apparent lien on the whole of said lot 2.”

From the above facts the court found, as conclusions of law:

“(1) That the said tax certificate, for the foreclosure of which this action is brought, is null and void, because no sufficient and reasonable notice to perform said work was given to owners.

(2) That the said tax certificate ought to be adjuged...