Manseau v. Edwards

• Decision Date: 22 November 1881
• Citation: 53 Wis. 457,10 N.W. 554
• Parties: MANSEAU v. EDWARDS AND WIFE.
• Court: Wisconsin Supreme Court

53 Wis. 457

10 N.W. 554

MANSEAU

v.EDWARDS AND WIFE.

Supreme Court of Wisconsin.

Filed November 22, 1881.

Appeal from circuit court, Kewaunee county.

W. H. Timlin, for respondent.

G. G. Sedgwick, for appellants.

COLE, C. J.

This is an action to foreclose tax certificates. The objection was taken on the trial, and is renewed here, that it was incumbent on the plaintiff, in order to be entitled to a judgment of foreclosure, to allege and prove that the proceedings, from the listing of the land for taxation down to the sale for taxes, had been in conformity to law.

In Durbin v. Platto, 47 Wis. 484, which was a similar action, it was decided, on demurrer to the complaint, that it was no more necessary to set out in the complaint the proceedings antecedent to the certificate than it was in an action to foreclose a mortgage to state the transactions of the parties antecedent to the giving of the mortgage. That decision was based upon the language of the statute, which provides “that all the rules of law and practice relating to the foreclosure of mortgages by action,” and “the rules of pleading and evidence therein, * * * so far as they are applicable,” shall prevail in these actions. Chapter 181, Laws 1872; section 1181, Rev. St.

That case, it is true, only involved a question of pleading, but the decision has an important bearing here. It pointedly answers the objection that the complaint failed to state a cause of action, particularly because it does not allege the liability of the land for taxation, or the proper levy of a tax, or the sale of the land for a tax. If that decision is sound, (as we have no doubt it is,) it was not necessary to allege these matters in the complaint; and if it was not necessary to allege these facts in the complaint, it would seem to follow, logically, that it was not incumbent on the plaintiff to establish or prove them on the trial in order to make out his case. But the ingenious counsel for the plaintiff further argues and insists that as the statute declares that the laws and rules of practice which relate to the foreclosure of mortgages, both as to pleading and evidence, shall apply to this action, so far as it is possible to apply them, that this relieved the plaintiff from making proof of any such facts, or from showing that all the anterior tax proceedings were regular. He says the meaning of this statute is that the same rules of evidence shall apply to these instruments in an action to foreclose them as apply to a note and mortgage in a foreclosure action; that is to say, when the plaintiff has introduced his tax certificate in evidence, he makes out his case as fully as he does by the introduction of a note and mortgage in a foreclosure action, and is not called upon to go any further to establish his right to a judgment. We have no doubt that this is a correct interpretation of the statute in question. Indeed, the construction which is contended for by the counsel on the other side practically renders the provision useless. He claims that it merely means the court shall not apply the rules of strict construction which prevail when parties are pursuing a new remedy resting entirely upon the statute. But if this were its object, it would seem to be quite unnecessary. We think, however, it has a far different purpose, and was intended to make the production in evidence of a tax certificate sufficient to establish a cause of action in this class of cases, thus relieving the plaintiff from the onus of showing that all the tax proceedings, from the listing of the land for taxation to the sale, were regular and in conformity to law. In the absence of the provision it would probably be necessary for the owner of the certificate,...