Hayes v. Adams County

• Decision Date: 06 February 1962
• Citation: Hayes v. Adams County, 113 N.W.2d 407, 15 Wis.2d 574 (Wis. 1962)
• Parties: Charles J. HAYES, III, et al., Appellants, v. ADAMS COUNTY, a Wis. municipal corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 407

113 N.W.2d 407

15 Wis.2d 574

Charles J. HAYES, III, et al., Appellants, v. ADAMS COUNTY, a Wis. municipal corporation, et al., Respondents.

Supreme Court of Wisconsin.

Feb. 6, 1962.

Rehearing Denied April 3, 1962.

An action by the plaintiffs, Charles J. Hayes III, Mary Ann V. Hayes and Mary Norlock against the defendants to cancel and set aside two tax deeds conveying certain real estate to Adams County, one dated December 12, 1958, and recorded in the Office of the Register of Deeds for Adams County on December 15, 1958, in Vol. 108 of Deeds, Page 267, and a tax deed conveying another parcel of real estate to Adams County on May 19, 1959. Both deeds were delivered pursuant to a tax sale held on October 19, 1954.

Adams County sold and quitclaimed the real estate described in the deed recorded in Vol. 108 of Deeds, Page 267, to George H. Zebell and Adelyne R. Zebell, his wife, on August 18, 1959. This deed was recorded in Vol. 125 of Deeds, Page 207.

The complaint alleges that the Hayeses failed and neglected to pay taxes on the real estate for the year 1954, and that Mary Ann V. Hayes on August 6, 1958, tendered to the county treasurer of Adams County a sum sufficient to redeem the outstanding taxes for such year, but the treasurer by mistake accepted that sum and applied it to the taxes for 1957, which were then due and payable, and issued a receipt therefor; that the plaintiffs Hayeses did not discover the error in the application of the tax payment until they received a notice of application for the issuance of a tax deed for a portion of the premises upon which there was a tax delinquency; that they notified the officers of the county that the money had been paid, but inadvertently applied to the wrong tax obligation; that no notice of the tax sales or the application for the issuance of the tax deeds on the lands covered by the tax deeds were ever received or served upon Mary Norlock who held a mortgage upon the premises. That on August 6, 1959, plaintiff through his attorney, filed a petition with the county clerk of Adams County directed to the county board requesting the cancellation of the deeds and an opportunity to redeem the property from the lien of taxes. The petition was denied The complaint further alleges unjust enrichment on the part of Adams County.

The defendant Adams County filed an answer in which it alleged that Hayeses had failed and neglected to pay the taxes on the premises for the years 1953, 1954, 1955 and 1956; and specifically denied the tender of the amount alleged in the complaint. It also denied that the treasurer had made a mistake in allocating the payment made on August 6, 1958, by the Hayeses and that the treasurer was directed to apply the amount paid to the 1957 taxes which were due and payable. The answer further sets forth that notice of tax sale or application of tax deed to the real estate in question was served by defendant upon Mary Norlock by registered mail with return address of the addressee; that a return receipt was delivered by the United States Postal Service on April 30, 1958, and the receipt was signed by Mary Norlock personally. The answer sets up a general denial of the facts contained in the complaint.

An answer and cross complaint were served by George H. and Adelyne R. Zebell setting forth nonpayment of taxes, and setting forth a general denial as to the facts contained in the complaint. In their cross complaint against the co-defendant, Adams County, the Zebells set forth that they were ignorant of the irregularities alleged in the complaint, and that they were innocent purchasers in good faith from Adams County and in reliance on good title from Adams County they made improvements and incurred expenditures and set forth that in the event that the deed was set aside by the court they would be damaged in the amount of $3,991.68, of which $3,660 was the purchase price.

Adams County in its answer to the cross complaint sets forth the fact that it issued a quitclaim deed to the co-defendants, Zebells; that it did not guarantee the title and that the title was merchantable.

The plaintiffs upon the pleadings moved for summary judgment and in support of their motion filed an affidavit, together with documentary evidence consisting of copies of resolutions of the county board, together with a copy of the petition addressed to the county board of Adams County and signed by Charles J. Hayes to permit the redemption of the premises from all past due taxes, interest and costs, and set aside the tax deeds. The defendants did not file a counteraffidavit.

The trial court denied the motion for summary judgment and set the case for trial upon the issues of fact therein. The plaintiffs appeal from this order.

Rogers & Owens, Portage, for appellants.

Donald L. Hollman, Sp. Counsel, R. E. Gieringer, Dist. Attys., Friendship, for respondent.

DIETERICH, Justice.

The only issue on this appeal is whether the pleadings and supporting affidavit of the plaintiff set forth sufficient evidentiary facts, including copies of documentary evidence, so as to entitle the plaintiffs to summary judgment.

The rule is: There must be no unresolved material issue of fact existing in the record. If there are, or if inferences must be drawn from the facts either to support or deny the application of the proposition of law advanced, this court cannot grant summary judgment. It is not the function of this court to resolve material questions of fact or to draw inferences which may be doubtful or uncertain, but to determine if such questions of fact exist. Zezblatt v. Sampson (1961), 12 Wis.2d 303, 107 N.W.2d 122 and Voysey v. Labisky (1960), 10 Wis.2d 274, 103 N.W.2d 9.

The following facts are related from the record: The plaintiffs, Charles J. and Mary Ann V. Hayes acquired title to a farm located in Adams County in 1945. They executed a real estate mortgage to one Mary Norlock, the co-plaintiff, in 1956. The plaintiffs did not pay the real estate taxes on the land in question for the years 1953, 1954, 1955 and 1956.

In 1938, Adams County adopted the following resolution incorporating the provisions of sec. 74.44 Stats., 1937.

'Be it resolved, by the county board of supervisors of Adams county, Wisconsin that the county treasurer of Adams county, Wisconsin, be and he is hereby authorized, empowered and directed, for and in the name of the county, to bid in and become the exclusive purchaser of all lands sold for taxes, for the amount of taxes, interest and charges remaining unpaid thereon.

'Be it further resolved, that all laws relating to the sale or purchase of lands sold for the nonpayment of such taxes, and to the redemption of such lands, shall apply and be deemed to relate to the sale or purchase of such lands by the county.

'Be it further resolved, that the said county treasurer, be and hereby is authorized and empowered to sell, transfer or assign any of such certificates so acquired or purchased by the said county, to the owner or owners of any of such real estate and to any mortgagee or lien holder on any such lands or to any heir, legatee, devisee, executor or administrator, having an estate or interest therein; proof of such interest and title shall be furnished by said applicant or purchaser and filed in the office of such county treasurer in the form of an affidavit fully setting up and showing their title or interest.

'Be it further resolved,...