State ex rel. Anderton v. Sommers

• Decision Date: 09 March 1943
• Citation: 8 N.W.2d 263,242 Wis. 484
• Parties: STATE ex rel. ANDERTON v. SOMMERS, Treasurer of Milwaukee County, et al.
• Court: Wisconsin Supreme Court

242 Wis. 484

8 N.W.2d 263

STATE ex rel. ANDERTON

v.SOMMERS, Treasurer of Milwaukee County, et al.

Supreme Court of Wisconsin.

March 9, 1943.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Reversed.

Certiorari brought on the relation of Charles E. Anderton against the respondents, C. M. Sommers, treasurer of the county of Milwaukee, and Bertha Parker and Alle J. Kaufer and wife, for the review and vacation of a determination made by the treasurer under sec. 75.01(1), Stats. The court granted respondents' motion to quash the writ, and judgment to that effect and dismissing the action was entered. Relator appealed therefrom.

Miller, Mack & Fairchild, Paul R. Newcomb, and Claude J. Hendricks, all of Milwaukee, for appellant.

Herbert J. Steffes, Dist. Atty., O. L. O'Boyle, Corp. Counsel, C. Stanley Perry, Asst. Corp. Counsel, and Shea & Hoyt, all of Milwaukee (Ralph M. Hoyt, of Milwaukee, of counsel), for respondents.

FRITZ, Justice.

On this appeal from a judgment quashing a writ of certiorari to review a determination made, under sec. 75.01(1), Stats., by the respondent C. M. Sommers, treasurer of Milwaukee county, as to what proportion of delinquent taxes on a 2 1/2 acre parcel of land is chargeable to a portion thereof sought to be redeemed from the taxes, it suffices to note the following facts alleged in the petition of the relator, Charles E. Anderton, and admitted by respondents' motions to quash. In the years 1933 to 1939 Anderton owned an undivided 1/2 interest in a parcel of 2 1/2 acres of land which was taxed as a whole; and he duly paid 1/2 of the taxes annually assessed against that parcel. The owner of the other undivided 1/2 interest failed to pay the other half of the taxes and because of that delinquency an undivided 1/2 of the parcel was sold for taxes in the years 1934 to 1940 to Milwaukee county, which still holds the certificates therefor. In 1939, there was a voluntary partition of the 2 1/2 acre parcel by Anderton conveying his interest in the south 1/2 thereof to the respondent Bertha Parker, who had acquired the other undivided 1/2 interest in the land; and by her conveying her interest in the north 1/2 thereof to him. His conveyance to her was made subject to taxes assessed against the undivided 1/2 interest acquired by Parker, but except as to such taxes he warranted the land conveyed by him to be free of all encumbrances; and in Parker's conveyance she warranted the premises thereby conveyed to Anderton to be free of all encumbrances, except as to taxes assessed against his undivided 1/2 interest therein. On December 7, 1940, the easterly portion,-measuring 150 feet along the north line,-of the south 1/2 of the 2 1/2 acre parcel was conveyed to the respondents Alle J. Kaufer and wife by Parker; and she, on December 13, 1940, made an application to Sommers, as county treasurer, in which she stated she was willing to redeem in whole or in part taxes which appear on the tax sales record for the years 1933 to 1939, inclusive, and requested a division of those taxes on three parcels, viz., (1) the easterly 150 feet of the south 1/2; (2) all except the easterly 150 feet of that south 1/2; and (3) the north 1/2 of the original 2 1/2 acre tract. On December 14, 1940, pursuant to that application, but without any notice thereof being first given to Anderton, Sommers divided, on the basis of valuations stated in an affidavit of the village assessor, the delinquent taxes and penalties, amounting to $5,488.76, equally between the north 1/2 and the south 1/2 of the 2 1/2 acre parcel, and then determined that the proportion thereof chargeable (1) to such north 1/2 was $2,744.88, (2) to the easterly part of the south 1/2, deeded to the Kaufers, was $1,317.34, and (3) to the westerly part of the south 1/2, retained by Parker, was $1,426.94. She paid the sum thus apportioned to the part conveyed to the Kaufers; but did not pay the amount apportioned to the part retained by her. Sommers, by a letter dated December 16, 1940, and addressed to Anderton at his residence in Florida, advised him of the action taken and enclosed a memorandum bill of the amount apportioned against his north 1/2 of the original 2 1/2 acre parcel.

Parker in applying, as the owner of but a portion of the 2 1/2 acre parcel of land, which was sold for taxes as a whole, to have a determination made by Sommers as to the proportion of the delinquent taxes chargeable to the respective portions thereof owned by Parker, Anderton and the Kaufers, and likewise Sommers, in making that determination, considered such application and determination authorized under sec. 75.01(1), Stats., and particularly the provision therein which reads: “provided, that when an application is made to the county treasurer to redeem from any tax sale any part or portion of any lot or parcel of land which was sold for taxes as a whole, but which is owned in severalty, said treasurer, * * * may ascertain * * * the true proportion of taxes chargeable to the part or portion sought to be redeemed, * * *.”

In construing the term “in severalty”, which is in that provision, this...