Pedro v. Grootemaat

• Decision Date: 31 May 1921
• Citation: 183 N.W. 153,174 Wis. 412
• Parties: PEDRO v. GROOTEMAAT.
• Court: Wisconsin Supreme Court

174 Wis. 412

183 N.W. 153

PEDRO

v.GROOTEMAAT.

Supreme Court of Wisconsin.

May 31, 1921.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Carrie Levan Pedro against A. L. Grootemaat. Judgment for defendant, and plaintiff appeals. Reversed on condition.

This is an action in ejectment, brought by the plaintiff, the original owner of the premises in question, against the defendant, who claims title under a tax deed.

The complaint, among other things, alleges that the plaintiff has an estate in fee simple in the south 20 feet of lot numbered 8, and all of lot numbered 9 in Block 10 (10), in College Heights, part of the southwest quarter of section numbered 3 in township numbered 7 north of range numbered 22 east, in the village of Shorewood, in the county of Milwaukee and state of Wisconsin; that the plaintiff is entitled to the possession of said premises; that the defendant unlawfully withholds the same from her, to her damage.

Judgment against the defendant for the possession of the premises is demanded, and for six cents damages, and the costs and disbursements of the action.

The answer denies the plaintiff's claim of an estate in fee simple, and also denies that she is entitled to the possession of said premises, and that he unlawfully withholds possession from the plaintiff, and denies that the plaintiff has sustained any damages whatever.

Furthermore, the defendant alleges that the real estate above described was on the 18th day of May, 1915, sold by the county treasurer of Milwaukee county, Wis., for the nonpayment of the taxes which were duly assessed and levied upon and against said premises for the year 1914 by the proper authorities, for the sum of $137, to one Charles L. Borst, to whom certificates of sale were duly issued as provided by law; that the said Borst thereafter, for value, duly assigned such certificates to the defendant; that the owners or claimants of said lands did not redeem the same from such sale, and that upon due proceedings had in that behalf the county clerk of Milwaukee county did on July 31, 1918, upon surrender of said tax certificates, duly make, issue, and deliver to the defendant a tax deed in the manner and form as provided by law, by virtue of which said real estate was assigned, transferred, and conveyed to the defendant, his heirs and assigns; that said deed was duly recorded in the office of the register of deeds of Milwaukee county, Wis., on August 1, 1918, in Volume 546 of Deeds, on page 525; that thereby the defendant became and now is the owner and holder of the title in fee to said premises. The defendant thereupon demands the dismissal of plaintiff's complaint, with costs. The suit was commenced on September 27, 1919.

There is practically no dispute as to the facts in the case. The circuit court found that the plaintiff was the owner in fee simple of the real estate in question prior to the issuance of a tax deed, but that she had subsequently been divested of her title by virtue of the tax deed. The lower court thereupon entered judgment in accordance with such findings.

The sole question in the case is whether the tax deed was or was not a valid deed.

Plaintiff sets forth 11 specific claims on the basis of which she maintains that the tax deed is invalid. It will be necessary to consider but a few of these claims so set forth. Among other things, it is claimed that said tax deed is invalid:

First. Because the county treasurer did not post the notice and statement required by section 1130 of the Statutes, or any notice of similar force or effect.

Second. Because there is no proof of the posting of the notice and statement of the tax sale, as required by section 1130 of the Statutes.

Adolph Kanneberg and K. K. Kennan, both of Milwaukee, for appellant.

Roehr & Steinmetz, of Milwaukee, for respondent.

DOERFLER, J. (after stating the facts as above).

[1][2] Section 1130 of the Statutes, among other things, provides as follows:

“The county treasurer shall, on the fourth Monday of April in each year, make out a statement of all lands upon which the taxes have been returned as delinquent and which then remain unpaid, * * * containing a * * * description thereof, with an accompanying notice stating that so much of each tract or parcel of land described in said statement as may be necessary therefor will, on the second Tuesday of June next thereafter and the next succeeding days, be sold by him at public auction at some public place, naming the same, at the seat of justice of the county, for the payment of taxes, interest and charges thereon; * * * and cause such statement and notice to be published in a newspaper printed in such county, * * * once in each week for four successive weeks prior to said second Tuesday in June; and such treasurer shall also, at least four weeks previous to said day, cause to be posted up copies of said statement and notice in at least four public places in such county, one of which copies shall be posted up in some conspicuous place in his office. * * *”

Section 1132 of the Statutes provides:

“Every printer who shall publish such statement and notice shall, immediately after the last publication thereof, transmit to the treasurer of the proper county an affidavit of such publication made by some person to whom the fact of publication shall be known; * * * and the county treasurer shall also make or cause to be made an affidavit or affidavits of the posting of such statement and notice as above required, which affidavits together with the affidavit of publication, shall be carefully preserved by him and deposited as hereinafter specified.”

The foregoing are general statutes, applicable to all counties in the state.

In the year 1913 the Legislature enacted section 1131a which provides as follows:

“Sec. 1131a. In all counties containing a city of the first class, the statement and description, provided for in section 1130 of the statutes * * * shall not be published as provided in sections 1130 and 1131 of the statutes, but it shall be sufficient in such counties to publish a notice, once each week for four successive weeks, in three daily newspapers published in the English, German and Polish language stating that all tracts or parcels of land upon which the taxes remain unpaid will be sold at a time and place specified in such notice, which time and place shall be the same as is provided in section 1130 of the statutes.”

Section 1131a relates solely to the publication of the notice as therein provided. Nothing is provided in said section with respect to the posting of the notice, and it also appears that, while section 1130 expressly providesfor a publication of the statement and notice referred to in said section, section 1131a attempts to amend said section 1130 by requiring a publication once in each week for four successive weeks in three daily papers published in the English, German, and Polish language.

There is no suggestion in section 1131a which dispenses with the posting of the notice as is provided for in section 1130.

The county treasurer did not post the notice and statement required by section 1130 of the statutes.

The question therefore arises whether section 1131a contemplates that the posting of the statement and notice shall be dispensed with. Now, in view of the fact that section 1130 provides both for a publication of the notice and statement therein referred to, and also for the posting of the statement and notice referred to therein, and that section 1131a was enacted as an additional section to the Statutes, and simply provides for a change in the publication of the notice, but does not in any way amend section 1130 with respect to the posting of the statement and notice therein required, a failure to post such notice and such statement constitutes a fatal omission on the part of the county treasurer. If it was contemplated by section 1130 that a publication in a newspaper would comply with all of the requirements of the statute, it would have been superfluous to say anything at all with respect to the posting of the statement and notice. The publication and posting are treated as totally separate and distinct matters by the statute. They are separate and distinct means of giving notice to the public of delinquent and unpaid taxes; the object and purpose being to give the widest possible publication by both methods set forth in section 1130 of the Statutes.

We are therefore of the opinion that, in order to comply with section 1130 of the Statutes, the notice and statement must be published, and the notice and statement required in said section posted.

It is said in the case of Jarvis v. Silliman, 21 Wis., 599, 601:

“If a copy of the notice was not posted up in the treasurer's office, does the failure to comply with the law in that respect render the deed invalid? The giving notice of a tax sale in the time and manner prescribed by law is generally a prerequisite to the validity of a tax title. The officer derives his power of sale in part from the notice, and in this respect his sale differs from the sale of land by a sheriff on execution. Any neglect of the officer selling land for the nonpayment of taxes, which deprives the owners * * * of the full information the law intended to give them renders the sale invalid. Blackw. Tax Tit. 253, 254.”

Furthermore, the word “post,” a used in section 1130, has a meaning distinct from what is implied by the term “publication.” It means “to attach to a post, a wall,...