Hutchinson v. Board of Supervisors, 26 Wis. 402

Hutchinson v. Board of Supervisors

26 Wis. 402 | Wis. | 1870

Lead Opinion

Dixon, C. J.

The statute provides that “if, after the conveyance of any lands sold for taxes, it shall be discovered that the sale was invalid, the county board of supervisors shall cause the money paid therefor on the sale, and all subsequent taxes and charges paid thereon by the purchaser, or his assigns, to be refunded, with interest on the whole amount at the rate of seven per cent, per annum, upon the re-delivery of the deed to be cancelled.” Laws of 1859, ch. 22, section 27. The question in this case relates solely to what shall constitute a discovery of the invalidity of a tax deed, within the meaning of the statute, by the party holding it, which shall require him to present and prosecute his claim against the county, or shall set the statute of limitations running so as to bar him if he does not do so within the time limited. The plaintiff was informed by one Cole, who had previously been an agent of the owner of the land, that the tax for which the deed had been issued “ had probably been paid; that there was some mistake about it, no doubt.” This was Mr. Cole’s testimony. The plaintiff testified that he thought Mr. Cole told him the tax was paid, and that he received a letter from Mr. Cole, saying that the tax was paid. Such was the evidence relied upon in proof of the discovery, and to set the statute running. The majority of this court are of the opinion that it was insufficient for that purpose. Mere information of this kind, coming from a stranger or person not then the owner or agent, or interested, and more in the nature of rumor than anything else, does not, in our judgment, amount to such a discovery or such knowledge on the part of the holder of the tax deed, as will oblige him to abandon all claim under it, and take upon himself *406the hazards, relying upon such mere reports, of commencing a prosecution to recover back his money, in order to avoid the bar of the statute. We think the holder of the deed should have some more direct and authentic information than this, such as the exhibition of the tax receipt, or clear and positive information that it exists and can be procured to substantiate his claim against the county; and that, without such clear and positive information or knowledge, he may well rest upon the general presumption of law in such cases, that the proper public officers have done their duty, and that the deed would not have been issued if the taxes had been paid. We think the judgment of the court below was correct, and should be affirmed.

Dissenting Opinion

Paine, J.

I dissent from the conclusion of the court, that the plaintiff, when informed by Cole that the tax on the sale for which his deed was issued had been paid, had not discovered the fact of the invalidity of his deed, sufficiently to set the statute of limitation running. The finding of the court is, that he was told “about December, 1859, by Cole, that the tax had been paid before sale.” It was not as full and specific upon the point as the evidence would have warranted. But the only fair construction of such a finding requires the inference that the information was positive and' sufficiently reliable to throw upon any man of ordinary prudence the risk of neglecting to inquire further. Although the finding does not state the particulars, it is fairly to be assumed, in construing it, that Cole professed to give the information as being within his own knowledge. And I think it unwarrantable to assume, as the court seems to do, that the information was mere rumor.

But if we look into the evidence, it appears clearly that the information was from one having in his possession the evidence of the fact. Cole had had charge of the land as agent. Although he did not himself *407pay that tax, he had had occasion to make such examination in respect to the taxes, that, when the plaintiff first spoke to him about it, he told him that the tax had probably been paid, and that without doubt there was some mistake about it. The opinion of the court seems to assume that this was all the information the plaintiff received from Cole. But Cole swears that after that conversation he had the receipt for the payment of that tax, and caused the entry to be made upon the record, as the statute requires, before the fire of 1860, by which the records were consumed. And the plaintiff himself swears that either before or after the conversation, Cole wrote him a letter saying that the tax was paid, and that this letter was written in December, 1859.

Now it seems very clear that the letter was written after the conversation. Cole’s attention having been called to the matter by the conversation, he afterwards examined it, obtained the receipt, had the entry made upon the books, and then wrote to the plaintiff positively that the tax had been paid. He swears positively that it was after the conversation that he had the receipt and caused the entry to be made upon the books. It was entirely natural that he should then have written to the plaintiff, informing him positively, as the plaintiff says he did in the letter, that the tax had been paid. And it is improbable that the letter was written before the conversation, or before he had fully informed himself by inspecting the receipt. That the letter was subsequent to the conversation, and to his obtaining the receipt, is clearly apparent from the fact that in the conversation he only professed to say what was probably the fact, while in the letter he said positively that the tax had been paid. And as the exceptions to the finding are sufficient to require us to look into the evidence, if it is not to be assumed upon the finding alone (as I think it should be) that the plaintiff’s information *408was reliable, and such as a man of ordinary intelligence should act upon, still, upon the evidence, we should be obliged to find that in December, 1859, the plaintiff was positively informed that the tax had been paid by a man who had the receipt in his possession, and caused the entry to be made upon the proper record. If this is to be treated as rumor, which the party interested may disregard, the statute of limitations in such cases will be of little practical effect.

The question is one of considerable interest. There are many cases of fraud and mistake where the statute begins to run from the time the fraud or mistake is discovered. I have always supposed that the rule in such cases was, that any positive information of the fact, from a source sufficiently reliable to justify a reasonable man in acting upon it, was a discovery sufficient to set the statute running, particularly where it appeared, as in this case, that by acting on the information the party would readily have procured complete evidence. If this is not so, if there is no discovery until somebody having no interest to move in the matter has not only informed the party interested,' but has been at the pains to hunt up and thrust into his possession, unasked, all the proofs necessary to establish the fact in a trial at law, there is practically no limitation to actions in such cases. Such seems to me to be the effect of the decision of the court, and for that reason I cannot assent to it.

By the Court. — Judgment affirmed.