Herbst v. Land & Loan Co.

• Decision Date: 18 February 1908
• Citation: 134 Wis. 502,115 N.W. 119
• Court: Wisconsin Supreme Court
• Parties: HERBST ET AL. v. LAND & LOAN CO.

134 Wis. 502

115 N.W. 119

HERBST ET AL.

v.LAND & LOAN CO.

Supreme Court of Wisconsin.

Feb. 18, 1908.

Appeal from Circuit Court, Oneida County; W. C. Silverthorn, Judge.

Action by S. Charles Herbst and others against the Land & Loan Company. From an order sustaining a demurrer to the reply to a counterclaim, plaintiffs appeal. Affirmed.

The ground of demurrer was that the reply did not state facts sufficient to constitute a defense to the counterclaim. The complaint was in a statutory suit to quiet title, averring that the plaintiffs were owners in fee, that the lands were vacant and unoccupied, and that defendant made some claim to the lands; the complaint not disclosing the nature of defendant's claim. The defendant answered, claiming title under a tax deed executed November 13, 1899, issued on tax certificates of sale of May, 1896, for the delinquent taxes of 1895, and the tax deed was recorded January 3, 1900. The defendant pleaded the three-year statute of limitations in support of said tax deed. Substantially the same matter was then averred as a counterclaim, with a prayer that the defendant's title under said tax deed be established as against the plaintiff, and to this counterclaim the amended reply was interposed, which reply is the subject of demurrer. Among other references upon the part of the appellant were the following: Section 1178, St. 1898; North v. Wendell, 22 Wis. 431;Eaton v. Lyman, 33 Wis. 34;Hunt v. Stinson, 101 Wis. 556, 77 N. W. 901;Dunbar v. Lindsay, 119 Wis. 239, 96 N. W. 557;Washburn Land Co. v. Railway Co., 124 Wis. 305, 102 N. W. 546;Lander v. Bromley, 79 Wis. 372, 48 N. W. 594;Lain v. Shepardson, 18 Wis. 59;Woodman v. Clapp, 21 Wis. 355;Webster v. Schwears, 69 Wis. 89, 33 N. W. 105;Cezikolski v. Frydrychowicz, 120 Wis. 369, 98 N. W. 211; section 1137, St. 1898; section 1138, St. 1898; Sprague v. Coenen, 30 Wis. 209;Baldwin v. Ely, 66 Wis. 171, 28 N. W. 392;Knox v. Peterson, 21 Wis. 247;McCurdy v. Rogers, 21 Wis. 197, 91 Am. Dec. 468;N. Y. & C. S. S. Co. v. Harbison (D. C.) 16 Fed. 688; 4 Story's Eq. Jur. (11th Ed.) p. 412, § 397; Mather v. Hutchinson, 25 Wis. 27;McMahon v. McGraw, 26 Wis. 614;Knox v. Cleveland, 13 Wis. 245;Fox v. Zimmermann, 77 Wis. 414, 46 N. W. 533. Among other references upon the part of the respondent were the following: Riley v. Riley, 34 Wis. 372;Supervisors v. Decker, 30 Wis. 624;Landauer v. Vietor, 69 Wis. 434, 34 N. W. 229;Crowley v. Hicks, 98 Wis. 566, 74 N. W. 348;New Bank v. Kleiner, 112 Wis. 287, 87 N. W. 1090; 1 Abbott's Trial Brief on Pleadings, pp. 64, 531; Gilbert v. Pier, 103 Wis. 331, 79 N. W. 215;Kennan v. Smith, 115 Wis. 463, 91 N. W. 986; 14 Encyc. Law (2d Ed.) p. 19; Jones v. Davis, 35 Wis. 376;Cornell v. Radway, 22 Wis. 260; McVichie v. Town of McKnight, 82 Wis. 137, 51 N. W. 1094;Cutler v. Ainsworth, 21 Wis. 381;Reeve v. Fraker, 32 Wis. 243;Town of Pine Valley v. Town of Unity, 40 Wis. 682;Kusterer v. Beaver Dam, 52 Wis. 146, 8 N. W. 726;Frankfort Bank v. Countryman, 11 Wis. 398;Gunderson v. Thomas, 87 Wis. 406, 58 N. W. 750;Britton v. Erickson, 80 Wis. 466, 50 N. W. 342;Steinberg v. Saltzman, 130 Wis. 419, 110 N. W. 198;State v. McGarry, 21 Wis. 496;Goodell v. Blumer, 41 Wis. 436;Union L. Co. v. Supervisors, 47 Wis. 245, 2 N. W. 281;Althouse v. Jamestown, 91 Wis. 46, 64 N. W. 423;Carpenter v. Town of Rolling, 107 Wis. 559, 83 N. W. 953.Nath. Pereles & Sons (Charles S. Carter, of counsel), for appellants.

Reid, Smart & Curtis, for respondent.

TIMLIN, J. (after stating the facts as above).

The amended reply admits that the lands in question were taxable in 1895; that the taxes for that year were unpaid and returned delinquent to the county treasurer, who duly advertised and sold the land for the nonpayment of such taxes; that the county clerk executed a deed of the land purporting to be based on the certificate of tax sale for said delinquent taxes; that the tax certificate had never been set aside or annulled, and no action commenced for that purpose; that the tax had never been paid or redeemed, and that more than three years had elapsed since the recording of the said deed; and that the lands are vacant and unoccupied. Among matters affirmatively averred in the reply were the following: The land was duly sold at public auction by the county treasurer of Forest county on May 19, 1896, for $2.44, the tax of 1895, to Emil G. Rahr, who bid in the lands at the request of and for the benefit of the plaintiffs (the then owners). An entry of such sale was made in the treasurer's salesbook. The latter made out and signed the usual tax certificate of sale running to Emil G. Rahr as purchaser, but this certificate was never delivered to, nor was the $2.44 paid by, Rahr. The land was not resold or reoffered for sale by the treasurer; but on the contrary some unknown time thereafter some unknown person fraudulently drew pen lines through the name of Emil G. Rahr in said certificate, and inserted in lieu thereof the name of Forest county, so that the latter appeared to be the purchaser at the sale. Thereafter the tax certificate was indorsed as required by statute by the county treasurer of Forest county, and delivered to the defendant, which procured thereon the deed aforesaid from the county clerk, and said deed does not show on its face that said Emil G. Rahr was such purchaser at said sale, nor does it show that the grantee therein named was an assignee of said Emil G. Rahr, the purchaser as aforesaid. Specific denials in the reply are: (1) That the defendant is the owner of the land described in the counterclaim; (2) that the county clerk was authorized to execute said deed to said land. What is claimed to be a general denial follows in these words: “Further replying, plaintiffs deny, except as hereinbefore expressly admitted, alleged, qualified, or denied, that they have any knowledge or information sufficient to form a belief as to each and every allegation in said counterclaim contained.”

There is an obvious difference between denying each and every allegation in a pleading and denying that the party has “any knowledge or information sufficient to form a belief as to each and every allegation” in the pleading. The latter form of expression is consistent with the possession of knowledge or information sufficient to form a belief of every allegation in the pleading except one. It affirms the lack of knowledge or information, not as to each allegation, but as to “each and every allegation.” If, however, we overlook this, it must be apparent that the supposed general denial reaches and relates only to allegations not theretofore (1) expressly admitted, (2) alleged, (3) qualified, or (4) denied by the same pleading. The pleading, as we have seen, contained a full admission that the taxes for the year 1895 were unpaid and delinquent and the land duly advertised and sold for the nonpayment of such taxes, a qualified admission that a tax deed was issued by stating that the county clerk executed a deed of said premises purporting to be based on this certificate of tax sale, and an express admission that the deed was recorded, and that more than three years elapsed since such recording, and that the land was vacant and unoccupied. Following the alleged general denial is a detailed description of the manner in which the lands were bid in by Emil G. Rahr and of the alleged defects in the aforesaid deed. These defects are stated to be that said deed does not show on its face that Emil G. Rahr was such purchaser at said sale, nor does it show that said grantee therein named was an assignee of Emil G. Rahr. But the same pleading shows that Emil G. Rahr was not a purchaser at said sale, and that the grantee in the deed was not an assignee of Emil G. Rahr. If the deed had contained the former recital, the recital would have been false in fact. Section 1178, St. 1898, requires that the purchaser at a tax sale be named in the tax deed; but purchaser here means one who has made a completed purchase, and not a mere bidder who has forfeited his bid by failing to pay for the tax certificate, and who never obtained a delivery of the tax certificate. The cases of Krueger v. Knab, 22 Wis. 429,North v. Wendell, 22 Wis. 431, and Washburn Land Co. v. Railway Co., 124 Wis. 305, 102 N. W. 546, are not...