Oosterwyk v. Milwaukee County

• Decision Date: 01 July 1966
• Citation: 31 Wis.2d 513,143 N.W.2d 497
• Parties: Gerhardus OOSTERWYK, Appellant, v. COUNTY OF MILWAUKEE, a municipal corporation, Respondent, Efren C. Quiroz, Defendant.
• Court: Wisconsin Supreme Court

Page 497

143 N.W.2d 497

31 Wis.2d 513

Gerhardus OOSTERWYK, Appellant, v. COUNTY OF MILWAUKEE, a municipal corporation, Respondent Efren C. Quiroz, Defendant.

Supreme Court of Wisconsin.

July 1, 1966.

David L. Walther, Milwaukee, for appellant. Robert P. Russell, Corp. Counsel, Joseph J. Esser, Asst. Corp. Counsel, Milwaukee, for respondent.

GORDON, Justice.

Mr. Oosterwyk grounds his claim against Milwaukee county on his belief that property received by the county pursuant to a tax deed and subsequently sold at a profit by the county gives a right to the former owner on the theory of unjust enrichment.

Mr. Oosterwyk owned land in Milwaukee county upon which were located certain sheds which were ordered razed. The cost of the razing resulted in the imposition of a $1,500 lien on the land. An action was commenced in 1953 contesting the reasonableness of the $1,500 lien, and this court affirmed a jury determination that the sum was reasonable. Oosterwyk v. City of Milwaukee (1959), 7 Wis.2d 160, 96 N.W.2d 372.

When the lien was not paid, the county obtained a tax certificate based on the amount of the lien, interest and other charges in accordance with sec. 74.44, Stats. Mr. Oosterwyk failed to exercise his right of redemption within the three-year period specified in sec. 74.46, and on April 2, 1958, Milwaukee county received the property via a tax deed.

The county commenced an action in circuit court on April 28, 1958, under sec. 75.39, Stats., for the purpose of quieting title and barring the former owners, including Mr. Oosterwyk, from all right, title and interest in the lands. A default judgment was entered on September 11, 1958, determining that Milwaukee county was the owner in fee simple of this land and that Mr. Oosterwyk and others were forever barred from all interest therein.

Mr. Oosterwyk filed a claim against the county in 1961 for the recovery of $11,572.85, which he alleged to be the value of the property. This claim was denied by resolution of the Milwaukee county board on June 27, 1961.

The present action was commenced on February 18, 1964, the complaint alleging that the county was unjustly enriched in the amount of $20,000, which is the profit claimed to have been realized by the county on the sale of the land formerly owned by Mr. Oosterwyk.

The answer of Milwaukee county included an affirmative defense that the claim was barred under sec. 59.76(2), Stats., because it was not commenced within six months after the denial of his claim by the Milwaukee county board.

The county moved for summary judgment, which was granted, and judgment in favor of Milwaukee county was entered on March 22, 1965. It is from such judgment that this appeal has been taken.

The plaintiff receives no support for his position from the relevant statutes. Ch. 75 contains the several legislative pronouncements concerning the question of title to land in relation to unpaid taxes. By virtue of secs. 75.14(1) and 75.36(2), Stats., a county si given an 'absolute estate in fee simple in such land subject, however, to all unpaid taxes and charges which are a lien thereon.'

Ch. 75 appears to make no provision whatsoever for distribution of a surplus upon sale of land as to which a county had obtained a tax deed. Sec. 75.36(8), Stats., provides for the proration of the proceeds of sale 'between the remaining nonoutlawed municipally owned taxes outstanding on the date the tax deed was taken,' but it does not direct payment of any surplus remaining after the payment of the taxes.

Since the statute does not provide for the distribution of any surplus, does it follow that the former owner is entitled to it? The plaintiff claims that it should be his on an unjust enrichment theory. The elements to prove a claim of unjust enrichment have frequently been asserted by this court. Superior Plumbing Co. v. Tefs (1965), 27 Wis.2d 434, 134 N.W.2d 430; General Acc. F. & L. Assur. Corp v. Berquist (1961), 15 Wis.2d 166, 111 N.W.2d 900; Home Savings Bank v. General Finance Corp. (1960), 10 Wis.2d 417, 103 N.W.2d 117, 81 A.L.R.2d 580; Arjay Investment Co. v. Kohlmetz (1960), 9 Wis.2d 535, 101 N.W.2d 700.

When a county sells land for a sum greater than the amount of the liens and retains such excess, it is obvious that the county benefits thereby, and it is probable that the county is fully aware of the benefit thus conferred upon it. However, it cannot be said that the county's retention of such benefits is inequitable, and thus one of the elements for a successful action in unjust enrichment is not present in the case at bar. 'Equity,' said Cardozo, 'does not act for every shadowy or unsubstantial wrong.' Nann v. Raimist (1931), 255 N.Y. 307, 319, 174 N.E. 690, 695, 73 A.L.R. 669.

In our opinion, a former owner such as...