T. D. Kellogg Lumber & Mfg. Co. v. Webster Mfg. Co.

• Decision Date: 05 October 1909
• Citation: 122 N.W. 737,140 Wis. 341
• Court: Wisconsin Supreme Court
• Parties: T. D. KELLOGG LUMBER & MFG. CO. v. WEBSTER MFG. CO.

140 Wis. 341

122 N.W. 737

T. D. KELLOGG LUMBER & MFG. CO.

v.WEBSTER MFG. CO.

Supreme Court of Wisconsin.

Oct. 5, 1909.

Appeal from Circuit Court, Langlade County; John Goodland, Judge.

Action by the T. D. Kellogg Lumber & Manufacturing Company against the Webster Manufacturing Company. Judgment for defendant, and plaintiff appeals. Reversed, and cause remanded with instructions.

This action was brought to recover $521.61 paid November 19, 1904, in redemption of a tax certificate alleged to be outstanding against the real estate of plaintiff, purchased from the defendant through one T. D. Kellogg. The action was based upon covenants against incumbrances, and it was alleged that the tax certificate was an outstanding incumbrance against plaintiff's property, and before action brought the plaintiff paid the amount due on the certificate to the county clerk of Langlade county, and brought this action to recover it from the defendant upon a warranty. The action was tried by the court, and the court found that on the 22d day of December, 1898, the defendant was the owner of the real estate in question, and conveyed the same by warranty deed to one Kellogg, who conveyed to the plaintiff, and that simultaneously with the delivery of said warranty deed the defendant executed and delivered to Kellogg a writing whereby it agreed to save Kellogg harmless from all tax certificates outstanding against said real estate. That in May, 1897, said lands were sold for taxes to one W. C. Weeks for the sum of $245.13, and a certificate in the usual form issued to said Weeks. That between 1892 and the date of the conveyance of the premises by defendant, Weeks was in the employ of defendant as superintendent, and had charge of its business in Langlade county. That A. J. Webster was president and manager of defendant, and all transactions and communications between Weeks and the defendant were conducted on behalf of defendant by said A. J. Webster, and that said Webster died in 1903. That during the superintendency of said Weeks the defendant kept a bank account in the city of Antigo, Langlade county, and Weeks as superintendent and agent of defendant drew checks against said bank account, and made drafts on the home office at Superior for the benefit of the bank account at Antigo in the name of defendant by Weeks, superintendent. That in purchasing the tax certificate Weeks acted as agent of defendant, and purchased such certificate with the money of the defendant and held it for its benefit. That in March, 1898, defendant brought an action against Langlade county, Weeks, and others, to set aside the taxes for which said land was sold, and for which the certificate had issued to Weeks. That the action was brought by an attorney employed on behalf of defendant by Weeks, and that said Weeks on behalf of defendant controlled said action, and made all communications with the attorney so employed. That Langlade county in its answer averred that said Weeks bought and held this certificate as the agent of defendant, and that his purchase of it amounted to a payment of the taxes. That this action was never brought to trial, and has never been disposed of. That on February 16, 1903, said Weeks commenced an action against the plaintiff to foreclose said tax certificate pursuant to section 1181, St. 1898, which action is denominated the “Weeks action.” That soon after the Weeks action was begun, and on February 18, 1903, the plaintiff herein notified defendant in this action of the commencement of said action, and that if it did not give the matter immediate consideration, it would be necessary for plaintiff to protect its interest in the action, and hold defendant for all damages. That the Weeks action remained pending in the Langlade county circuit court until the fall of 1904. In September, 1904, the plaintiff demanded of defendant that it redeem from the tax certificate in question, so as to clear the title to the property and let the money remain in court in lieu of the certificate lien, and that if this were not done, plaintiff would redeem, and look to defendant for its damages. In reply to this the defendant offered to assume the defense of the action, but refused to redeem from the certificate, and advised against plaintiff doing so. That immediately after redemption by plaintiff upon stipulation between plaintiff and Weeks the Weeks action was discontinued. That at no time did the plaintiff tender defendant the defense of the Weeks action. And as conclusions of law: That the purchase by Weeks of the tax certificate constituted a payment of the taxes, and that such certificate was no lien against the premises in question, and that the redemption by plaintiff from the tax certificate raised no liability of defendant to plaintiff. Judgment was entered accordingly that plaintiff take nothing, and that the defendant, Webster Manufacturing Company, recover from the plaintiff the costs. From the judgment entered this appeal was taken.Finucane & Conway, for appellant.

H. V. Gard, for respondent.

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

The vital question for determination upon this appeal is whether the tax certificate taken in the name of Weeks was a valid lien upon the real estate conveyed to plaintiff. If so, then the plaintiff had a good cause of action against the defendant. This question turns upon whether the proof establishes that the certificate was taken by Weeks for the defendant, and therefore amounted to a payment of the taxes, and whether the relation of Weeks to the defendant in the matter was such as to prevent him from taking the certificate, and thereby making it a lien upon the premises. These questions involve an examination of the evidence as to whether or not it sustains the findings. Much labor has been imposed upon the court on account of the indefinite and unsatisfactory condition of the evidence. We have bestowed much labor upon the record, with a view of discovering, if possible, sufficient competent evidence to support the findings in view of the well-settled doctrine of this court that, unless the clear preponderance of the evidence is against the findings, they cannot be disturbed. We have in the first place the prima facie case made in favor of Weeks' title by the certificate, regular upon its face, in addition to the positive evidence of Weeks that he was the absolute owner of the certificate corroborated by Gertrude Weeks, bookkeeper. To meet this evidence the defendant attempted to make a case by statements in books of defendant kept by Weeks and his wife while in the employ of defendant, and letters and declarations written and made by agents of defendant. The defendant put in evidence, under objection, certain entries on the cashbook and ledger of the defendant company, which it was claimed tended to show payment by the defendant of an amount on a tax certificate corresponding to the amount of the tax certificate in question; also a letter in the handwriting of ...