9 Wis. 402 | Wis. | 1859
By the Court,
The only ground of demurrer to this complaint is, that it does not state facts sufficient to constitute a cause of action. It therefore becomes necessary to look at the statements of the complaint to see if this ground of demurrer really exists.
The suit was instituted for the purpose of cancelling and setting aside certain tax certificates issued upon the sale of the lots mentioned in the complaint, for side walk taxes or assessments, levied by the trustees of the village of Madison, which certificates it is alleged are regular upon their face, and constitute a cloud upon the title. The complaint states, in substance, that the appellant is now and was in 1S55, the owner in fee of the lots; that the trustees of the village, on the 15th of May of that year, levied or pretended to levy a tax upon them for building a side walk, which tax was over and above the amount of taxes levied by said trustees for corporation purposes; that the tax list for the collection thereof was afterwards placed in the hands of the treasurer of the village, who proceeded to sell the lots to the defendant Remington, for the amount of said sidewalk tax, and to issue certificates of sale therefor; that the appellant notified the treasurer that he was the owner of the lots, and had paid all taxes legally chargeable upon them, and that he forbid the sale of
By subdivision 15 of § 14, of the village charter, (Sess. Laws 1846, p. 144,) the trustees were authorized, on the application of owners of two-thirds of the lots on- any street, or on one side of any street or block, to levy and collect a special
Assuming then that the village authorities had no legal right or authority to sell the lots for the assessments or special taxes mentioned in the complaint, and the question arises whether, under such circumstances, a court will interfere and set aside the certificates of sale and direct them to be cancelled, and perpetually enjoin the proper officers from executing conveyances pursuant to the sale; or deny the appellant the relief he seeks, and compel him to wait until his rights are disturbed by some legal proceedings, and then defend himself upon principles of the common law.
Whether this complaint was filed under § 34, chap. 84, R. S., 1850, which enables any person having the possession and legal title to land to institute a suit against any other person setting up a claim thereto; or whether it is to be considered as addressed to the well settled equity powers of courts which exert their jurisdiction to remove such a cloud upon the title as tends to cast a doubt upon it, and diminishes the value of the property, it is not very material to inquire. In either view we think the complaint can be sustained. If the action should be considered as instituted under the provision of the statutes above cit.ed,it was insisted by the counsel for the respondents, that the complaint Was defective in not distinctly alleging, that the respondents or either of them, “ set up a claim” o the lands therein mentioned. But we think the statements
Practically we well know that a person having a tax certificate upon a piece of land, does really have a claim to such land, which most materially affects its value. No one will give as much for property resting under such a paper, as he would if the title were clear. These certificates are always capable of being used to throw a cloud over the title, and thus produce a serious injury. And we cannot but think that the person who holds them does set up a claim to the lands embraced in them within the meaning and intent of the statute.
But it was further contended, in support of the demurrer, that if the statements in the complaint were true they clearly showed that the taxes in question were entirely illegal and void, the certificates therefore, it was insisted, constituted no cloud upon the title, and the appellant’s remedy at law was adequate and complete. As this practice would not be sound under the old practice, it cannot certainly have more weight since the adoption of the code, which professes to abolish all
Chap. 32, S. Laws, 1853, gives the holder of these tax certificates also the right to foreclose his lien under them in chancery. It has been held that when a valid legal objection appears upon the face of the proceedings, through which the adverse party can alone claim title to the complainants’ land, that there was not in law such a cloud upon the title as to authorize a court of chancery to interfere and set aside the proceedings. Wiggins vs. The Mayor, Aldermen and Commonwealth of New York, 9 Paige, 17; Van Doren vs. The Same, id., 388; The Mayor, &c., of Brooklyn vs. Meserole, 26 Wend., 132; Moores vs. Smedley, 6 J. C. R., 28.
In this case however it is alleged that the tax certificates
In the case of Moses T. Walker, Treasures of Rock County, Appellant, vs. A. B. Carpenter, Appellee, decided at the December term, 1856, this court affirmed an order of the circuit court, granting an injunction to restrain the county’treasurer from selling lands for delinquent taxes, when it appeared from the bill that such taxes were illegal and void. The ground of the decision was, that, as by § 109, chap. 15, R. S., the tax deed would be prima facie evidence of the regularity of all the proceedings, from the valuation of the land by the assessor inclusive, up to the execution of the deed. The onus of showing that the deed was invalid would devolve upon
It follows from these views, that the order of the circuit court sustaining the demurrer to this complaint, must be reversed and the cause remanded for further proceedings according to law.