44 Wis. 213 | Wis. | 1878
It is not claimed that the allegations in the complaint bring this case within the case of Marsh et al. v. The Supervisors of Clark Co., 42 Wis., 502. There is- no allegation that the assessment was unfair or unequal; nor is there any allegation of an omission to do any act which the law requires to be done, and which omission would tend to impair the general equality and uniformity of the assessment; nor is there any allegation showing that “ the groundwork of a valid tax is wanting.” In fact, the allegations in this com
This rule has been so far qualified by this court, that where it is made to appear that the tax proceedings are void at law, though not inequitable and unjust, and are, notwithstanding, an apparent lien, or cast a cloud uj)on theplaintifFs real estate, the court may entertain jurisdiction of the case for the purpose of removing the lien or cloud, provided the plaintiff has paid or offered to pay the amount of the tax justly and legally assessed against such real estate; and though no tender or offer to pay has been made before the commencement of the action, the relief may be granted conditionally upon the payment of such tax. Pierce v. Schutt, 20 Wis., 423, and the cases above cited.
Nor do we understand that the rule, long established in courts of equity, that he who seeks equity must do equity, is qualified or abrogated in favor of a party w'ho seeks to remove
But this section, construed in the light of other legislation upon the subject of taxes and tax proceedings, necessarily requires that it should be so construed as to conform to such other legislation. It has been well said by a learned writer, that “ every single statute is made under the knowledge of all other laws with which it is meant to coexist, and by which its action is to be modified and determined. In the legislative, as in the religious code, the text must not be taken without the context.” In view of other legislation upon the subject of taxation, it would be absurd to say that, whilst a party to the strictly legal action of ejectment must pay all taxes fairly
If it be established as a rule governing actions of this kind, that the plaintiff is entitled to recover his costs when no part of the taxes sought to be declared illegal are inequitable or unjust, by simply showing an irregularity in the tax proceedings which might avoid a tax deed when used to enforce a claim of title under it, without either a tender of the tax before suit brought, or in his complaint, so that the holder of the tax certificate or deed can determine whether he will take it or contest his right, very few men will have the improvidence to become purchasers at tax sales. It will be a dangerous business to hold tax certificates or tax deeds, though involving only a few cents, or at most a few dollars, if the holder may be subjected to the penalty of paying a large bill of costs to an obstinate nontaxpayer, who may choose to commence an action against him without giving him the option of receiving without litigation what is equitably and justly due him.
It is true, as a general rule, that the question of costs is in the discretion of the court; but such discretion is a reasonable discretion, to be exercised reasonably. We think it is an abuse of such discretion to award a large bill of costs to a plaintiff who has come into court without offering to do, and in fact refusing to do, what justice requires he should do, and what the court demands of him as a condition to affording him any relief, against a defendant who has never had the option of determining whether he would receive what was so justly due him, or whether he would litigate.
The case of Pierce v. Schutt, 20 Wis., 423, clearly indicates that in such an action, where none of the taxes are declared inequitable, and therefore not payable, the plaintiff should not recover costs, but should pay such costs to the defendant as the court in its discretion might deem just. The language is: “ The matter of costs in these cases rests very much in the discretion of the court, and it could, as one condition of the
Thus far we have considered this ease upon the hypothesis that the plaintiff in the court below had shown such irregularities in the tax proceedings as rendered them and the tax deed issued thereon void, and as indicating what judgment should be entered in the court below, if, upon a new trial, such irregularities shall be shown.
Upon the record as returned in this case, we are unable to say that the tax proceedings are void for any irregularities shown by the proofs. The only reasons urged in this court by
First, that the comptroller of the city of Oconto did not make oat and attach to the tax roll his certificate that the roll had been compared by him with the assessment roll, and that said assessment roll, and the whole thereof, had been copied into such tax lifet. Sec. 13, ch. 8 of city charter, which is ch. 449, P. & L. Laws of 1869. Sec. 18 of ch. 8 of said city charter also provides, in substance, that all the directions given in said ch. 8 shall be deemed directory only, and no error or informality in the proceedings of any officers intrusted with the same, not affecting the substantial justice of the tax itself, shall vitiate or in any way affect the validity of the tax assessed. We are of the opinion that, under these provisions, the omission of the comptroller to annex his certificate to the tax roll did not affect the substantial justice of the tax assessed. There is no allegation in the complaint that it did, nor is there any proof given to show that the whole assessment roll was not in fact copied into the tax roll. This omission did not, therefore, vitiate the tax, or render the subsequent proceedings for the collection thereof void.
Secondly, it is insisted that the proofs of publication of the notice of sale for the nonpayment of the taxes, required by law to be made by the treasurer of the county, do not show, 1st, that such notice was posted up in four public places in the county, for four weeks previous to the tax sale; 2d, that such notice was published for four weeks in a newspaper printed in the county.
The objections to the proof of posting the notices of sale are, that the affidavits of the posting on file do not state that the places where the same were posted were public places. The affidavits show that the notices were posted as follows: one “ on the inner walls of the Peshtigo Company’s store, at Pesh-tigo village, in Oconto county; ” one “on the inner walls of
It has been held, at least by implication, in several cases in this court, and also by tbe supreme courts of Michigan and Maryland, that an affidavit of tbe posting of the notice of tbe tax sale or other proceeding, under a statute which requires the same to be posted for a certain length of time in one or more public places in a town or county, which simply states that such notice was posted in the required number of public places in such town or county, for the time fixed by the statute, is sufficient evidence of compliance with the law, without mentioning the particular places where the same were posted. Jarvis v. Silliman, 21 Wis., 607; Iverslie v. Spaulding, 32 id., 394; People v. Highway Commissioners, 14 Mich., 528; County Commissioners v. Clarke, 36 Md., 206. It is probable that this is the form of proof made by most of tbe county treasurers, on tax sales made in this state; and it is undoubtedly presumptive evidence of compliance with the requirements of the statute. It has not been held, so far as I have been able to ascertain, by this court, that an affidavit of the posting of a tax notice, which stated the particular places where the notices were posted, was not sufficient proof of such posting, if it appeared from the affidavit that the places mentioned therein were in fact public places. We are of the opinion that an affidavit in the latter form is more satisfactory than one in the form first mentioned. By the former affidavit, we have only the opinion of the witness that the places of posting were public places; and, however false the affidavit might be, there would be great difficulty in proving its falsity, for the reason that, no place of posting being stated, it would
The proof of posting, in this case, showing that the notices were posted at the postoffiee in the city of Oconto, the post-office in the village of Marinette, and at the Peshtigo Company’s store, all in the county of Oconto, is at least presumptive evidence that they were posted in public places in the county. We think that in this state the court, in the absence of any
The objection to the proof of publication of the notice in a newspaper published in the county of - Oconto, we think, is without any foundation in fact. The affidavit of Mr. Hall shows that he is the publisher of the paper; and he swears that the notice was published therein for the requisite time. The fact that he was the publisher, and swears that it was published in his paper, is at least presumptive evidence that he knew the fact of its publication. His evidence given on the trial shows that the paper was printed in the county, within the meaning of the statute on that subject.
The objection made on the argument, that the notice of sale, as published and posted, was not signed by the treasurer, either in liis official capacity or otherwise, does not sufficiently appear from the record to justify us in finding that it was not so signed.
A tax deed was issued upon the certificates sought to be set aside, before the trial, and was offered in evidence by the defendant. This deed is presumptive evidence that all the requirements of the law had been complied with; and the burden of proof is cast upon the plaintiff. He must, therefore, show clearly, from the evidence offered, that irregularities have occurred in the proceedings, which avoid the sale and deed, before he can demand the judgment of the court that they shall be declared void. We do not think this record shows any such irregularities.
The judgment of the circuit court is reversed. As it was alleged by the attorney for the respondent, that none of the notices of the tax sale, as published and posted, appeared to have been signed by the treasurer, and, if such defect should be made to appear, it would avoid the sale, a new trial is ordered.
By the Gourt. — Judgment reversed, and new trial ordered.