Beaser v. City of Ashland, 89 Wis. 28

89 Wis. 28 | Wis. | 1894

PiNNet, J.

It is conceded that the allegations of the complaint show that the assessment or special tax in question is void, and it is clear from the allegations of the complaint that the city and its officers are prosecuting the proceeding in question, and intend to and will, unless restrained, continue it until said tax becomes a prima facie valid lien and cloud upon the plaintiff’s title to bis lots, and to a sale thereof' to satisfy the same. The defendants contend that there is-no apparent cloud shown to exist upon the plaintiff’s title, because the proceedings had not been carried so far as to make the tax a lien on his lots, and the tax roll had not yet been delivered to the city treasurer; that the plaintiff had an adequate remedy at law, and that no case was made for the interference of a court of equity.

In order to exclude the exercise of the equitable functions-of the court, the remedy at law must be as practicable and efficient to the ends of justice and its prompt administration as the remedy in equity. Gullickson v. Madsen, 87 Wis. 19, and cases cited. Certiorari is not, as suggested, such a remedy, for it does not issue as a matter of right, but only in the-discretion of the court.

It is beyond question that a court of equity has jurisdiction, not only to set aside and cancel a proceeding that is-already a cloud upon the plaintiff’s title, but to enjoin one which is being prosecuted and will, if not prevented, result in creating a cloud upon his title. The tax roll and the certificate, in case of a sale of the plaintiff’s lots, would not be void upon their face, if issued in the usual manner, and would create a primia facie lien on the lots. A court of equity will not only interfere to remove or cancel an illegal claim or cloud upon the plaintiff’s title, which is prima facie valid, but will enjoin a proceeding in a case like the present, which will necessarily create such cloud. The tax or assessment, in an uncanceled state, has tendency to throw a cloud over the title. Shepardson v. Milwaukee Co. 28 Wis. 594. This view is the necessary result of repeated adjudicated cases. In Mitchell v. Milwaukee, 18 Wis. 92, it was said that: “ The doctrine has long been settled in this state that a court of equity will interfere to prevent a cloud on the plaintiff’s, title when his lands are threatened to be sold upon a void tax or assessment.” Johnson v. Milwaukee, 40 Wis. 315; Roe v. Lincoln Co. 56 Wis. 66.

For these reasons the demurrer was rightly overruled

By the Court.— The order of the circuit court is affirmed..