Hoffmann v. Peterson

• Decision Date: 10 January 1905
• Citation: 102 N.W. 47,123 Wis. 632
• Parties: HOFFMANN v. PETERSON ET AL.
• Court: Wisconsin Supreme Court

123 Wis. 632

102 N.W. 47

HOFFMANN

v.PETERSON ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1905.

Appeal from Circuit Court, Outagamie County; John Goodland, Judge.

Action by John Hoffmann against John P. Peterson and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Action for trespass in wrongfully cutting timber on certain vacant and unoccupied land in Outagamie county. The answer and counterclaim set up, and the court finds, that plaintiff's title is based on a tax deed issued in 1896 upon the sale of 1893 for unpaid taxes of 1892. The property belonged to Adolph Johnson in his lifetime, who died in 1887, leaving Albert Johnson, a minor, his sole heir at law. The latter attained his majority on April 21, 1901, and March 8, 1902, within one year thereafter, paid to the county clerk, as in redemption of said taxes, the proper sum, and received due and formal redemption receipt and certificate. In November, 1901, Albert Johnson conveyed the premises by warranty deed, through and under which the defendants claim title. The court concluded, as matter of law, that the land was duly redeemed from said tax sale; that plaintiff's deed thereby became void; that defendants, at the time of the trespass and at the time of the judgment, were owners in fee simple, and were entitled to judgment dismissing the complaint and canceling plaintiff's tax deed. From judgment in accordance with these conclusions, plaintiff appeals.McManamy & McManamy, for appellant.

C. D. Cleveland, Jr., for respondents.

DODGE, J. (after stating the facts).

Plaintiff denies the right of a minor to redeem from a tax sale after the deed has been issued. Section 1165, Rev. St. 1898, provides that “the owner or occupant of any land sold for taxes or other person may, at any time within three years from the date of the certificate of sale, redeem the same or any part thereof.” Section 1166, Rev. St. 1898, provides that “the lands of minors or any interest they may have in lands sold for taxes may be redeemed at any time before such minors come of age and during one year thereafter.” It is difficult to discover in these statutes any such limitation as that for which appellant contends. It is lands “sold for taxes” which may be redeemed, and it would constitute legislation, rather than construction, to insert into these express and unambiguous statutes a condition that the redemption take place before the issue of the deed, and would, in our opinion, in large measure, thwart the beneficent purpose of section 1166, to preserve to minors their lands during their nonage against the drastic forfeiture imposed by our laws for the collection of taxes upon real estate. That no such limitation was, indeed, contemplated by the Legislature, is evinced by section 1176, which, in defining the character of title conferred by a tax deed, recognizes that in some cases a right of redemption persists beyond its issue and delivery. The right of redemption after the issue of a deed by a minor or other person has apparently never been questioned before this court. The cases cited by the appellant declaring the impregnable character of a tax deed after three years from its record were all decided with reference to fee owners of full age, to whom a right of redemption is given by the statutes only prior to the issue and record of the deed. On the other hand, in numerous cases, the fact that the tax certificate had ripened into a tax deed was assumed to be no obstacle to redemption, although, no question being raised, there was no discussion of the subject. Jones v. Collins, 16 Wis. 595;Wright v. Wing, 18 Wis. 45;Eaton v. Tallmadge, 24 Wis. 217, 222;Dayton v. Relf, 34 Wis. 86;Tucker v. Whittlesey, 74 Wis. 74, 84, 41 N. W. 535, 42 N. W. 101;Little v. Edwards, 84 Wis. 649, 55 N. W. 43. We therefore conclude that the right of redemption given to a minor by section 1166 is not impaired by the fact that a deed has been issued.

The next question in order is whether the minor in this case had any such interest, after executing and delivering his warranty deed, as would entitle him to redeem. The statutes above mentioned give this right of redemption not only to the owner and occupant, but “other person.” In this respect they are broader in terms than those of many other states. Nevertheless it has been held that a mere stranger has no right of redemption, and therefore an attempt on his part to exercise it by paying money to the county clerk is futile. Cousins v. Allen, 28 Wis. 232;Rutledge v. Price County, 66 Wis. 35, 27 N. W. 819. The right of redemption, especially in minors, is highly favored, and statutes conferring it have always been accorded liberal construction. Jones v. Collins, 16 Wis. 605;Dubois v. Hepburn, 10 Pet. 1, 9 L. Ed. 325. Hence we have no doubt that the words “or others,” in section 1165, are to be given such construction as will enable those whose rights would be directly prejudiced by the absolutism of the tax title to redeem therefrom, though they be neither owners nor occupants. The right has been recognized in favor of those having mere moral beneficial interest under void parol trust (Karr v. Washburn, 56 Wis. 303, 14 N. W. 189;Begole v. Hazzard, 81 Wis. 278, 51 N. W. 325); an administrator, though without title, and without any showing that the land was necessary for debts (Bowers v. Williams, 34 Miss. 324); or a wife having mere inchoate homestead interest (Lamar v. Sheppard, 80 Ga. 25, 5 S. E. 247). Just what interest or title to the land rests in one...