Gould v. Sullivan

• Decision Date: 11 April 1893
• Citation: 84 Wis. 659,54 N.W. 1013
• Parties: GOULD v. SULLIVAN.
• Court: Wisconsin Supreme Court

84 Wis. 659

54 N.W. 1013

GOULD

v.SULLIVAN.

Supreme Court of Wisconsin.

April 11, 1893.

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

Ejectment by James P. Gould against Daniel Sullivan. From a judgment for plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J:

This was an action of ejectment commenced August 18, 1891, for the recovery of 80 acres of land, and the complaint is in the usual form. The answer, admitting possession, claims that the defendant is the owner in fee of the premises; that during the year 1884 they were subject to taxation in the county of Lincoln, and duly taxed, but the taxes thereon were not paid, and were returned by the town treasurer to the treasurer of the county as delinquent by reason of nonpayment. The answer alleged the advertisement and sale of said lands for the taxes for that year, the issue of the certificate of sale to Lincoln county, and the assignment thereof to the defendant, and the execution of a tax deed thereon by the county clerk of Oneida county, in which county at the time the premises were situated, to the defendant, in the form prescribed by law, and that the same was recorded on the 29th day of May, 1888; and the defendant insisted on the bar of the statute created by chapter 309, § 3, of the Laws of 1880, (sections 1188, 1189, Sanb. & B. St.,) and other statutes of limitation of the state, applicable to the facts, and alleged that none of the taxes levied upon said lands were paid before sale, nor were they redeemed from sale prior to the issuing and recording of the tax deed. Upon trial before the court it was found that the plaintiff had a perfect chain of title to the lands in question, from the United States to himself, when the action was commenced; that defendant was in possession; that the allegation of execution and registry of the tax deed set up in the answer upon certificates of tax sale thereof for the year 1885 for the delinquent tax for the year 1884 was true; “that on the 17th day of February, A. D. 1885, one C. A. Norway was the agent for the plaintiff for the payment of his taxes in the town of Russell, Lincoln county, the town in which the lands described in the complaint were then situated, and that he furnished and gave to the town treasurer of said town a list of the lands of the plaintiff upon which he desired to pay the taxes for the year 1884, which list included the lands described in the complaint; that said town treasurer, on the said 17th day of February, gave to said Norway a tax receipt for the taxes due for the year 1884 upon the lands described in the list so furnished to said town treasurer by him, and that on said tax receipt, so furnished, the lands described in the complaint were entered and marked, ‘Not on the roll,’ and no tax was carried out against said lands; that said Norway then and there, acting as the agent for the plaintiff, offered to pay, tendered, and did pay, to said town treasurer, all of the taxes levied and assessed upon and against the lands of the plaintiff in said town, according to the tax receipt furnished to him at the time he so paid said tax, and that he relied upon the said town treasurer's statement that the sum and amount in said tax receipt, so furnished, was the whole amount of taxes due upon the list of lands furnished said treasurer by said Norway; and that such offer and tender of the tax upon the lands described in the complaint were, and amounted to, a payment of said tax for the year 1884.” The court found that the defendant never took any title to said lands by virtue of the tax deed, and that the plaintiff was entitled to recover, but ordered the amount of said taxes, and interest thereon, to be paid into court before the entry of judgment in favor of the plaintiff, and the same was accordingly paid. From the judgment in favor of the plaintiff, the defendant appealed.

Alban & Barnes, for appellant.

John W. Hume, for respondent.

PINNEY, J., (after stating the facts).

1. The lands in question in this case were regularly taxed for the year 1884, and were returned as delinquent, sold for nonpayment of the taxes, etc., and, no redemption having been made, a tax deed thereof was executed to the defendant, and recorded May 29, 1888. The lands were then unoccupied, and so remained for the period necessary to bar an action for their recovery under sections 1188 and 1189. It is plain that the plaintiff, the former owner, had in good faith attempted and offered to pay to the proper town treasurer, in due season, the taxes for which the lands were sold, together with the taxes on his other lands in the same town, and was informed that there were no taxes on the roll against them. The town treasurer whose official duty it was to furnish the information applied for, and who represented the state in the exercise of the taxing power, pro hac vice, was mistaken; and no fault, upon the facts found, can be imputed to the plaintiff. He had a right to regard the information as true, and there is nothing to show that he had any reason to distrust it. There was no occasion for him to consult the sale list, or the notice of redemption of lands sold, and he had no occasion to pursue the matter further. Shall he lose his lands by reason of the tax deed, and for no fault of his own? Here is a clear case of mutual mistake, which would certainly be ground for relief in a court of equity, under its original jurisdiction, in cases of fraud, accident, and mistake,--a mistake which, if not corrected, carries with it all the injurious consequences of a fraudulent misrepresentation. Equity has jurisdiction, not only to arrest tax proceedings, but to set aside tax deeds founded on, or resulting from, fraudulent conduct of taxing officers. Lefferts v. Supervisors, 21 Wis. 688;Slater v. Maxwell, 6 Wall. 268, 277. And the first question presented is, assuming that sufficient ground exists for avoiding the tax deed after the lapse of the statutory bar of three years, whether it can be made available in a legal action of ejectment, or must resort be had to an equitable action to cancel the tax deed. The statute, section 1188, is that “no action shall be maintained by the former owner, or any person claiming under him, to recover the possession of any land, or any interest therein, which shall have been conveyed by deed for the nonpayment of taxes, or to avoid such deed against any person claiming under such deed, unless such action shall be brought within three years next after the recording of such deed.” This statute does not apply (1) when the tax has been paid before sale; and (2) when the land has been redeemed after sale. Under our system of pleading no formal reply is allowed to new matter set up as a defense, but the plaintiff is allowed to reply in evidence at the trial. Had the taxes in this case been actually paid to the...