Bray & Choate Land Co. v. Newman, 92 Wis. 271

92 Wis. 271 | Wis. | 1896

The following opinion was filed December 17, 1895:

Pinxey, J.

The evidence in this case brings it within the principle of Gould v. Sullivan, 84 Wis. 659, in which it was held that, where the owner of lands in good faith attempted and offered to pay the taxes thereon, and was informed by the town treasurer, whose duty it was to state the amount of the taxes, that there were no taxes on the roll against such lands, he was entitled to rel/ upon such information, and his title was not divested by a subsequent sale of the lands for the nonpayment of the taxes which he had offered to pay. An erroneous statement as to the amount due for such taxes is equally within the rule, if acted on and payment is made by the landowner accordingly. Yery many authorities were cited in that case in support of the conclusion announced, and it is in harmony with many other cases. Wakefield v. Rotherham, 67 Iowa, 444; Hintrager v. Mahoney, 78 Iowa, 531; Pottsville L. Co. v. Wells, 157 Pa. St. 5; Lewis v. Monson, 151 U. S. 545; and cases cited in note to Gould v. Sullivan (84 Wis. 659), in 20 L. R. A. 487. In Gould v. Sullivan, supra, it was said that the decisions-granting relief in such cases “ are founded on the ground, that the treasurer is the legal custodian of the books, and possesses full and authentic information, and it is his official duty to furnish it; that the landowner cannot get the information in any other way, and is not bound to search the books for himself, and that landowners almost always do, and rightfully may, depend on information thus received; and that the party cannot be involved in the loss of his land by the mistake of the officer;” that the same rule ought to-apply “ where the landowner applies to pay, and offers -and is ready to pay, the taxes on his lands, and is informed by the treasurer that there are none to pay.” Where, as in this case, the owner applied in good faith.to the'treasurer to pay his taxes, and received a statement, and paid accordingly, and afterwards the land was returned and sold for taxes in arrear when such statement was furnished, and not included by the negligence, fault, or mistake of the officer, the title of the taxpayer will not be divested by the sale or barred by the three years statute of limitation. People ex rel. Cooper v. Registrar of Arrears, 114 N. Y. 19.

In Pottsville L. Co. v. Wells, 157 Pa. St. 5, where the taxpayer had paid all the taxes stated by the treasurer, and the property was sold for taxes not stated to him, the sale was held void, and it was said that “if the owner pays all the taxes stated by the treasurer, he has done his whole duty. He can do no more. . . . It is but just, then, that'a Iona, fide attempt to pay all such taxes, frustrated by the fault of the treasurer, should stand as the equivalent of actual payment,” — adding that “it is an almost.universal rule which substitutes a tender for performance, when the tender is frustrated by the act of the party entitled to performance.” Breisch v. Coxe, 81 Pa. St. 336.

It was the official duty of the treasurer in the instant case to have stated to Wiley, who applied, on behalf of the plaintiffs, undoubtedly in good faith, to pay the taxes on these lands, the entire amount of all the taxes on the roll against them. The evidence satisfies our minds that the application was made in good faith to pay the taxes on these lands on the roll for 1885. The agent had, it appears, sufficient funds for the purpose, and there is no ground whatever to impute to him a purpose to pay a part, only, of the taxes actually due. The evidence of Wiley is to the.effect that he applied to pay the taxes on the lands of his principals in that town; that he did not know of the additional tax on them for the year 1884. The evidence of Daly and Choate is to the same effect, and that neither they nor the plaintiffs knew of the fact until more than three years after the tax deed had been executed. The evidence, as a whole, satisfies us that the fact that the tax in question was not actually paid, . or the lands redeemed, was not the fault of the then owners or the plaintiffs, their grantees, but that its nonpayment was owing to the negligence, mistake, or failure of the treasurer to properly perform his duty. It is not material, in this view, to inquire in what particular manner the negligence, mistake, or failure to do his duty occurred. It is enough that, through failure, mistake, or neglect of duty, the owners of the land were misled or failed to get the proper information to which they were entitled. The receipt given on 'the occasion was partly printed and partly written, and is for “ taxes charged on the described property on the tax roll of the above-named town for the year -1885,” and was prepared for and contained a tabular statement of divers matters under appropriate headings, there being a column with the heading, “Taxes Unpaid Previous Tears,” in which there was no entry whatever, the space having been left blank. The treasurer, in his testimony, had no recollection on the subject at all, aside from the fact that he recognized the receipt and was able to say that Wiley paid taxes to him that year. He was utterly unable to state the particulars of the transaction. Under these circumstances, we conclude that it is a just inference that the fault or mistake was that of the treasurer, and that the owners of the land were entitled- to rest securely upon the statements in the receipt, and the fact that they applied in good faith to pay the taxes ou these lands, and that neither they nor their agent had any information or notice in fact of the tax-for the year 1884 for the nonpayment of which the lands were sold. The evidence in all such cases must undoubtedly show a bona fide application to the proper officer to pay the taxes on the land, and tbe fact that payment of all that was due’was not made was owing to the negligence, fault, or mistake of the officer, and not of the landowner.

We hold, for these reasons, that the plaintiffs were entitled to relief against the tax deed in question upon making payment of the taxes and proper interest thereon.

By the Cowrt.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in accordance with the opinion of this court.

A motion for a rehearing Was denied February 18, 1896.