131 Wis. 454 | Wis. | 1907
The following opinion was filed February 19, 1907:
It should perhaps be premised that this is one •of four cases argued successively which present many questions common to more than one of them. The briefs for appellant are industriously confused by reference one to the other; by omitting in some "all discussion of questions prominent in that particular case, and devoting much space to repetition of arguments on questions arising in others, but wholly absent in the case in hand. Thus the brief in the present case is almost entirely devoted to the contention that by reason of an illegal sale by the county of the tax certificates upon which defendants’ tax deeds ’are founded, any title created by such deeds was held in trust for the county, and that the county’s equitable title has been by quitclaim transferred to plaintiff. This claim is set forth by pleadings in one of the other cases, but is not hinted at in the pleadings 'in this. The sole claim of title which plaintiff sets forth in this case is based on the tax titles acquired either by the county or by plaintiff subsequent to the tax titles claimed by defendants, or upon deeds from prior owners. No stretch of liberality of construction can disclose notice by pleadings of a claim by plaintiff to any trust chargeable upon defendants in favor of the county or the plaintiff. Hence any attempt to raise that question by offers of proof below, or by argument here, properly was and must be rejected. Any attempt to attack the county’s transfer to defendants’ grantor, made either by a former owner or by a claimant of merely a later tax title, would be so indirect and collateral that it could not be admitted. Sloan v. Rose, 101 Wis. 523, 77
1. As a basis of plaintiff’s title, and therefore of her cause of action, are a series of tax deeds the validity of which is assailed on the ground of irregularities not appearing on the face of the deeds' and not going to the validity of the taxes which culminated in them. Numerous irregularities are urged by respondents, but three of which shall we deem it necessary to discuss in this case. Some others of them are passed upon in Van Ostrand v. Cole, ante, p. 446, 110 N. W. 891.
(a) It is contended that failure of the town treasurer to sign at the end the statement or return of delinquent taxes is a fatal defect. Sec. 1112, Stats. (1898), requires the town treasurer to “make out a statement of the taxes remaining unpaid” and submit it to the county treasurer, who shall, by comparison with the tax roll, ascertain that it is correct. Thereupon the town treasurer shall make affidavit to be annexed to such statement declaring its correctness and- other specified facts. Sec. 1114, Stats. (1898). The sole foundation for any supposed duty to affix signature to the statement is sec. 1113, Stats. (1898), which provides that the return “may be made in tabular form and varied as facts may require, but when so made shall be, as nearly as convenient, after the following form.” The illustrative form embodied in the section shows a blank at the end for treasurer’s signature. We do not think the language of this section is at all mandatory. If the required facts are clearly declared and unambiguously certified, that satisfies the purpose of the law. While the steps expressly commanded by the statutes must be taken to effect a valid tax sale, we cannot feel justified in loading the process of collecting public revenues with mere matter of form and arrangement which the statutes merely suggest but do not expressly require. No
(b) It is objected that the tax certificates and the delinquent statements show that an excessive price was made at the tax sale by adding a sum under heading “Eive per centum collection fees” to the amount specified in the delinquent return under a heading “Total amount of tax.” No contention is made but that, under our tax statutes, the property is to be sold for an amount which shall include all the taxes levied thereon, plus five per cent, thereof as a collection fee, together with certain costs and expenses involved in making the sale. Sec. 1135, Stats. (1898). The contention-is, however, that, under sec. 1112, Stats. (1898), it is the duty of the town treasurer to insert in his return as a single item under the heading “Total tax” the sum of such taxes, with the five per cent, fee added to them. This is predicated' upon the command: “He shall make out a statement of the taxes so remaining unpaid, including the five per cent, allowed by law for collection fees;” and also upon the fact that in the form suggested by sec. 1113, Stats. (1898), there is-
Upon this subject our attention is urged to Pinkerton v. J. L. Gates L. Co. 118 Wis. 514, 95 N. W. 1089, where one-of the grounds of invalidity in the tax proceeding was the inclusion of an item described in the opinion, “Eor an additional amount equal to five per cent, of the amount of the-return.” As to this the court- said: “Eo attempt is made to'justify the inclusion of such additional amount.” The-printed case upon that appeal does not, aid us at all in discovering the true state of the tax records, and obviously the-court was led to the inference that this w'as an arbitrary and additional sum in excess of the legal five per cent, collection-fee. It is not stated in that case that it was even described as a collection fee. We did not in that case at all consider or decide the construction to be given to a delinquent return-which contained merely a column described as “Total tax”' and an additional column for “Eive per centum collection-fee.” If, as seems to be suggested by one of the counsel in this case who was also counsel in that, the court was in fact dealing with but a single five per cent, collection fee there, we-must deplore that the record was in such shape as not to-reasonably inform us of the fact.
Some contention is made that the fatal character of the inclusion of this fee has been purged by ch. 35, Laws of 1905. That statute, which went into effect March 28, 1905, amended sec. 1132, Stats. (1898), so as to merely require that the printer’s affidavit be transmitted on or before the date fixed for the tax sale, and by a second section provided:
“Whenever any printer shall have in good faith heretofore published the statement and notice required by sec. 1132 of the Statutes of 1898 and has been paid by the county for such services and has ^neglected to transmit the affidavit of such publication to the county treasurer within the time required by said sec. 1132, such payment to said printer by said county is hereby declared valid and no part of the same can be. recovered from said printer by said county.”
We can find nothing in this statute which even attempts to change the relative rights of landowner and tax-title
2. To avert the result of the invalidity of her tax deeds, appellant urges certain reasons why respondents should be precluded from attacking them.. Eirst among these is the asserted fiduciary character of respondents’ title and the constructive trust imposed thereon in favor of the appellant, which has already been mentioned, and plaintiff’s inability under her pleadings to predicate any rights thereunder declared. She also contends, especially as against defendants’ counterclaim, that by reason of lapse of more than three years from the record of respondents’ tax deeds any suit based thereon is barred by sec. 1187, Stats. (1898). This contention is fully considered in.the opinion by my brother Siebeckee, and overruled, in the accompanying case of Van Ostrand v. Cole (ante, p. 446).
Eext appellant asserts irregularities in defendants’ tax deeds, and assigns error upon the rulings of the trial court that she could not impair defendants’' right either to attack her tax deeds or to claim recovery under their own by proving such irregularities. This ruling was rendered effective by excluding evidence of such defects, and was based upon sec. 1188, Stats. (1898), on which respondents now rely. Plaintiff’s claim of title, it must be remembered, at least as
3. Appellant presents an apparently sincere argument to the effect that, by the judgment in this case, she is deprived of property without due process of law, to the breach of-the prohibition contained in the federal constitution and its amendments prohibiting a state from enacting any law having that effect. The respects in which this constitutional right of property is claimed to have been invaded are two: First. The contention is presented that by virtue of secs. 1176, 1191, Stats. .(1898), the county and its grantee, the plaintiff, were vested with complete title in fee simple to the lands involved under her tax deeds, and that judgment taking such land -away from her therefore deprives her of her property. It is true that sec. 1176 does provide that the tax deed “shall vest in the grantee an absolute estate in fee simple in such land.” Sec. 1191, however, merely provides that land should be exempt from taxation when the county shall have received a tax deed and shall hold unredeemed tax certificates for at least two ensuing years. It
The second invasion of the guarantees of the federal constitution is predicated upon the fact that in 1899, after appellant had acquired her tax certificates and had recorded the first of the tax deeds upon which she rests, but before any limitation period had run in protection thereof, the term of limitation prescribed by sec. 1189a, Stats. (1898), was enlarged by the substitution of three years in place of nine months, so that her deed would not become impregnable to the particular form of attack covered by that section so soon as under the law existing at the time of its issue. There are two complete answers to this complaint of appellant: First. Sec. 1189a regulates the limitation only of actions to attack a tax deed because void on its face. This action concedes the prima facie validity of appellant’s deed, and is therefore wholly unaffected by that section or by the amendments thereof. Another complete answer, however, is that, until a statute of limitation has completely run so as to vest
We find nothing in the record which can justify a reversal of the judgment.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied April 30, 1907.