Marshall v. Benson
| Decision Date | 03 February 1880 |
| Citation | 4 N.W. 385,48 Wis. 558 |
| Parties | MARSHALL v. BENSON and another, imp |
| Court | Wisconsin Supreme Court |
January 9, 1880, Argued
APPEAL from the Circuit Court for Fond du Lac County.
Ejectment to recover possession of a lot in the city of Fond du Lac. Complaint in the usual form. The defendants, Benson and Smith, answered separately, each claiming to be the owner in fee of an undivided one-half of the lot. A jury having been waived, the cause was tried by the court.
The plaintiff read in evidence various conveyances which he claims show title in him, derived from the United States. The defendants, to prove the allegations of their answer, read in evidence a tax deed of the lot to Mary J. Marshall, duly executed in 1877 by the proper officer, on a certificate of sale of the lot made in May, 1874, for nonpayment of taxes and sundry mesne conveyances, from such grantee, of an undivided half thereof to each of the defendants, Benson and Smith.
The plaintiff read in evidence the assessor's affidavit to the assessment roll of the ward in which the lot is situated for the year 1873, which bears the signature of three assessors, and an approval of such roll signed by four assessors. The affidavit commences as follows: "I Harvey Durand, assessor for the first ward of Fond du Lac city, in said county, do solemnly swear," etc. The jurat is, "Read to the affiant and subscribed and sworn to before me," etc.
The plaintiff also offered to prove the rule of valuation of property for taxation by the assessors in certain years other than 1873; also, by the statements and admissions of the assessors and by common report, the rule of valuation acted upon by the assessors in 1873. The evidence was rejected.
The plaintiff proved that in a few instances property included in the assessment roll of 1873 was undervalued.
Thereafter the court filed its decision, whereby it found as facts, (1) that said premises were not owned by the plaintiff when this action was begun; (2) that the defendants did not unlawfully withhold possession thereof from the plaintiff; and (3) that when this action was begun the defendants above named were, and ever since had been, the owners in fee simple, each of the undivided one-half of said premises, and in possession thereof. As a conclusion of law, the court held that the defendants were entitled to judgment against the plaintiff for costs.
From a judgment entered pursuant to such findings and conclusion, the plaintiff appealed.
Affirmed.
For the appellant, there was a brief by Shepard & Shepard, and oral argument by G. E. Sutherland.
For the respondents, there was a brief by Coleman & Spence, and oral argument by Mr. Spence.
The following opinion was filed February 3, 1880.
It is claimed that the tax deed is void upon its face because it does not show the year in which the taxes were assessed, for the nonpayment of which the lot in controversy was sold and conveyed. It is a complete answer to that objection, to state that the deed is in the form then and now prescribed by statute. Tay. Stats., 437, § 166; R. S., 377, sec. 1178.
The tax deed, being regular on its face, and having been duly witnessed and acknowledged, is presumptive evidence of the regularity of all prior proceedings in respect to the taxation and sale of the lot. R. S., 377, sec. 1176. Its production, therefore, was prima facie proof of title in the grantee therein named; and the mesne conveyances from such grantee showed such title in the defendants Benson and Smith.
Had no attempt been made to impeach the tax deed, undoubtedly the findings of the court and the judgment would be correct. It is to be determined, whether the tax deed is successfully impeached. It must be presumed, we think, that the lot in controversy was sold and conveyed for nonpayment of the taxes assessed against it in 1873. This presumption arises from the fact that the statute directs sales of lands for the delinquent taxes of one year to be made in May of the following year, and does not direct that for taxes of former years, the collection of which had been enjoined, the lands should be sold at that time, if released from the injunction.
1. The alleged defects in the affidavit annexed to the assessment roll of 1873 are, that it was signed by but three assessors, and sworn to by but one of them. It is understood that assessments in the city of Fond du Lac are made by a board consisting of one assessor from each of the five wards of the city. The rule of the statute is, that "all words purporting to give a joint authority to three or more public officers, or other persons, shall be construed as giving such authority to a majority of such officers or other persons, unless it shall otherwise be expressly declared in the law giving the authority. " R. S. 1858, ch. 5, sec. 1; R. S., 1145, sec. 4971. Our attention has not been called to any express provision in the charter of Fond du Lac which takes this case out of the general rule.
2. Conceding (but not holding) that but one assessor made an affidavit, this does not invalidate the tax deed. It is provided in section 2, ch. 334, Laws of 1878, that "no omission by any assessor to take or subscribe the oath required by law by him to be annexed to the assessment roll . . . shall invalidate or in anywise affect the validity of the assessment or tax." The effect of this provision is to render the signing and making of the affidavit by the assessor, which before was mandatory, merely directory. The power of the legislature to make the change was asserted in Plumer v. The Supervisors, 46 Wis. 163.
3. The rulings of the court, rejecting evidence of the rule of assessment in certain years other than 1873, and of the common report as to the rule acted upon by the assessors in 1873, were clearly correct. The question in issue related to the assessment for that year and no other, and the rule upon which such assessment was made is not one of those facts that may be proved by common report.
We think, also, that the learned judge of the circuit court ruled correctly in rejecting evidence of the statements and admissions of the assessors in respect to the basis upon which they made the assessment in 1873. The act of 1878, chapter 334, sec. 12, provides that "no assessor shall be allowed in any court or place, by his oath or testimony, to contradict or impeach any affidavit or certificate made or signed by him as such assessor." In the opinion by the chief justice in Plumer v. The Supervisors, supra, we find this language concerning the section just quoted:
The learned counsel for the plaintiff claim that the language last above quoted is obiter in that case, and therefore not binding in this case, in which the question of the validity of the statute is directly involved; and they argue with great ingenuity that it was not competent for the legislature to impose such a disability upon assessors.
It is quite true that the validity of section 12 was not directly involved in that case; but other provisions of the same chapter, enacted in the same view--that is, to secure the collection of the public revenue,--were thus involved. We were compelled to hold certain of those provisions invalid. We were conscious that our judgment would seriously embarrass the state and its municipalities in collecting taxes already levied, and that remedial legislation on the subject would be absolutely necessary. We deemed it our duty, therefore, to consider and pass upon all of the provisions of the act which were claimed to be invalid, to the end that the legislature might be...
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