Gilbert v. Dutruit

• Decision Date: 17 December 1895
• Citation: 65 N.W. 511,91 Wis. 661
• Parties: GILBERT v. DUTRUIT ET AL.
• Court: Wisconsin Supreme Court

91 Wis. 661

65 N.W. 511

GILBERT

v.DUTRUIT ET AL.

Supreme Court of Wisconsin.

Dec. 17, 1895.

Appeal from circuit court, Marathon county; Charles V. Bardeen, Judge.

Ejectment by C. S. Gilbert against Sophia L. Dutruit and another. Judgment for defendants, and plaintiff appeals. Affirmed.

This is an action of ejectment, brought by plaintiff, who is owner of the land involved, unless his title is cut off by tax deeds under which defendants, Sturtevant and Sophia Dutruit, claim title. In 1884 and 1885 the land was sold for taxes to Lincoln county, and certificates were issued accordingly. During the year 1887, E. Dutruit was treasurer of Lincoln county, and the certificates referred to were owned by such county at the time he entered upon the duties of his office. By an act of the legislature approved April 11, 1885, as amended by an act approved March 26, 1887, Oneida county was created out of part of the territory of Lincoln county, and it was provided that all certificates upon lands in the territory set off in the formation of the former county should, on or before the 1st day of July, 1887, be assigned to the new county, and delivered to its treasurer. It was further provided that on all such certificates tax deeds should be issuable by the proper officer of Oneida county, instead of Lincoln county, and that all redemptions from such certificates should be made to the proper officer of the former county. The certificates in question were upon lands situated in such new county, and, pursuant to law, they were assigned accordingly, and became the property of such county. Thereafter defendant Sturtevant purchased the same of Oneida county, and defendant E. Dutruit was directly or indirectly interested in such purchase. Thereafter tax deeds were issued on such certificates, and at the time of the commencement of this action the tax-deed title was in defendants, Sturtevant and Sophia L. Dutruit. The trial court held the tax deeds valid, and rendered judgment accordingly, from which plaintiff appealed.Brown & Pradt, for appellant.

Hetzel & Smart, for respondents.

MARSHALL, J. (after stating the facts).

This case turns upon the construction of section 1143, Sanb. & B. Ann. St., which reads as follows: “It shall not be lawful for any county treasurer, or any county clerk, or for any of their deputies or clerks, or any other person for them, or any of them, to purchase, directly or indirectly, property sold for taxes at any tax sale, or tax deed held by the county, or by any person or persons whomsoever, except for and on behalf of the county, as provided by law; nor shall any such treasurer, county clerk, or any of their deputies or clerks, or any other person for such treasurer, county clerk, or any of their deputies or clerks, be directly or indirectly interested in the purchase of any property sold as aforesaid, at any such tax sale, or in the purchase of any tax certificate or tax deed, except as hereinbefore provided; and any tax certificate or tax deed purchased or issued, or any purchase of property made in violation of the provisions of this section, shall be null and void; and no money received into the county treasury for any such tax certificate shall be refunded to the purchaser or to any person on his behalf.” The learned circuit judge held that the words, “or in the purchase of any tax certificate or tax deed, except as hereinbefore provided,” refer to tax certificates issued during the treasurer's incumbency of the office, and that the prohibition reaches no further; that it does not prevent his purchasing certificates of the county, or of any vendee of the county, issued prior to his assumption of the duties of the office. Prior to the amendatory act of 1881 the law prohibited the county treasurer from being interested in the purchase of “property sold for taxes at any tax sale, or the purchase of any tax certificate or tax deed held by any county except for and on behalf of the county” (Laws 1864, c. 276), and this court held, in Coleman v. Hart, 37 Wis. 180, that the statute only prohibited the treasurer from purchasing tax certificates from the county, not from a vendee of the county. The law was then amended (chapter 268, Laws 1881) so as to prohibit the treasurer from purchasing “property sold for taxes at any tax sale or tax deed held by the county or by any person or persons whomsoever, except for or on behalf of the county, * * * or being interested in the purchase...