Milledge v. Coleman
| Citation | 2 N.W. 77,47 Wis. 184 |
| Parties | MILLEDGE v. COLEMAN |
| Decision Date | 02 September 1879 |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Oconto County.
Ejectment. Plaintiff appealed from a judgment in favor of the defendant. The case will appear from the opinion.
Judgment affirmed.
For the appellant, there were separate briefs by Webster & Brazeau his attorneys, and L. S. Dixon, of counsel, and oral argument by Mr. Webster and Mr. Dixon.
For the respondent, there was a brief by Hastings & Greene, and oral argument by Mr. Hastings.
The sole question in this case arises upon the statute of limitations set up in the answer. The action is ejectment the plaintiff claiming title under a patent from the state. The defendant claimed the premises by virtue of a tax deed which had been recorded more than three years before the commencement of the action. The court below found as a fact, that to the amount of all legal taxes and charges for which the premises were liable to be sold, the county treasurer added five cents to pay for a United States revenue stamp to be affixed to the certificate of sale, and that this sum was included in the amount for which the premises were sold.
Now it is insisted by the learned counsel for the plaintiff, that because five cents to pay for a revenue stamp was included in the amount for which the land was sold, the tax sale was void, and the limitation did not run upon the tax deed. The position is briefly this: the statute expressly speaks of "land which has been sold and conveyed by deed for nonpayment of taxes;" and therefore, when, as in this case, the sale was in whole or in part for that which was not a tax, and which, under no circumstances, could be a tax, the sale is not for taxes, and the deed is not within the words nor intent and meaning of the statute.
We are not able to concur in this construction of the statute. It is admitted at the outset that the county treasurer had no legal authority to include in the amount for which the land was sold, five cents for a revenue stamp, and that the tax deed could have been avoided for this illegal excess before the statute had run upon it. Barden v. Supervisors, 33 Wis. 445; Baker v. Columbia County, 39 Wis. 444. So likewise would the sale and conveyance have been avoided if the taxing officers had included an illegal excess for fees, either intentionally or through a mistake of the law. Kimball v. Ballard, 19 Wis. 601; Warner v. Supervisors, 19 Wis. 611; Pierce v. Schutt, 20 Wis. 423. And it would be as accurate and just to say in the one case as in the other that the land had not been sold for taxes, because there was an illegal excess or charge included in the amount for which the land was liable to be sold. In the case before us, the land was sold for $ 8.08, of which $ 8.03 were confessedly legal taxes and legal charges. It is quite true the land was sold for a gross sum, a part of which was legal and a part illegal. But we have no doubt there was a sale for the nonpayment of taxes, within the meaning of the statute. If the limitation does not apply to the deed in this case, neither would it apply to any case where there was included in the amount for which the land was sold an illegal excess arising from the mistakes of the taxing officers, in extending the tax, or where there was an erroneous charge for fees, whether made intentionally, or through mistake of law.
While the validity of the sale and conveyance is an open question this illegal excess or any other irregularity in the tax proceedings may be shown in avoidance of the deed; but when the limitation has attached, the deed cannot be impeached upon any such ground. This is the view which has uniformly been taken of the statute by this court in the cases which have come before it; and to adopt now the construction contended for by plaintiff's counsel would disturb numerous titles. In the very recent case of Oconto Company v. Jerrard, 46 Wis. 317, 50 N.W. 591, the effect of...
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