Keller v. Friedrichs, 4 N.W.2d 169

4 N.W.2d 169 | Wis. | 1942

Action to quiet title. This action was begun on August 25, 1941, by Albert A. Keller, plaintiff, against Alfred Friedrichs and Gertrude Friedrichs, his wife, defendants, to quiet the title to certain lands situated in Milwaukee county. The defendants answered denying the allegations of the plaintiff's complaint and alleged that Alfred Friedrichs had title to the premises based on a tax deed issued April 10, 1940. By way of counterclaim the defendant Alfred Friedrichs alleged that on April 12, 1940, Realty Finance Securities Company was the owner in fee simple of the real estate subject to a mortgage held by the plaintiff; that the plaintiff acquired all of the right, title, and interest of the original owner through a sheriff's. deed on foreclosure; that the property was sold to the city of Milwaukee on February 20, 1934, for the nonpayment of taxes for the year 1933; that the city of Milwaukee thereafter assigned the tax certificate to the defendant, Alfred Friedrichs; that Friedrichs had purchased other tax certificates either from the city of Milwaukee or the county of Milwaukee and is now the owner and holder thereof; that these certificates cover the tax periods from the year 1934 to the year 1938, and have a face value aggregating $469.84, plus accrued penalties and interest; that the defendant Alfred Friedrichs claims title to the property by virtue of a tax deed issued to him on April 10, 1940, by the city of Milwaukee on the tax certificate for the sale of February 20, 1934, tax of 1933, which deed was recorded April 12, 1940. The defendants ask judgment establishing their title.

The plaintiff replied to the defendant's counterclaim, admitted that defendant claimed title by virtue of the tax deed; that the defendant has paid other taxes; denied that by virtue of the tax deed or by virtue of the payment of taxes that the defendant has become the owner of the real estate in question —

"but alleges on the contrary that said Alfred Friedrichs was the tenant of the said Realty Finance Securities Company at the time of the issuance to him of said tax deed and the payment of said taxes as aforesaid, and that said Alfred Friedrichs, had no other or greater right in said premises than that of his said landlord.

"As and for a further defense the plaintiff alleges that the purchase of such tax certificates and the payment of such taxes by said defendant was made solely in the interest and for the benefit of the said defendants' landlord, and that the said tax deed is for that reason void and of no effect."

The defendants demurred to the reply. From an order sustaining the demurrer entered on the 11th day of December, 1941, the plaintiff appeals. The sole question raised upon this appeal is whether a tenant may, by the purchase of tax certificates outstanding against leased premises and the taking of a tax deed thereon, acquire title as against his landlord. The plaintiff contends that the tenant cannot acquire a tax title as against his landlord because he is under a duty to pay the taxes and rests his contention upon Dunn v. Snell (1882),74 Me. 22. In that case it was held that the mortgagor would not be allowed to purchase the mortgaged premises if sold for taxes for the purpose of defeating the mortgage. In that case it appeared that the mortgagor had covenanted and agreed to pay the taxes; that a tax title thus acquired must be deemed as fraudulently obtained, citing McMahon v. McGraw (1870), 26 Wis. 614. In McMahon v. McGraw, decided in 1870, it was held that an agent who fraudulently allows land of his principal to be sold for taxes and takes the deed to himself and puts it on record, may be compelled to convey the title to the true owner or the true owner may maintain ejectment relying upon fraud as estopping the defendant from setting up a tax title. It is considered that these cases in no way support the contentions of the plaintiff. By the foreclosure sale the plaintiff in this case acquired the title of the mortgagor who was likewise the landlord of the defendant. The defendant did not permit the taxes to become delinquent. He was under no duty or obligation to pay the taxes. The default in payment of taxes was with the mortgagor, the predecessor in title of the plaintiff. There are no facts in this case which tend to establish a fraud, actual or constructive, nor any breach of duty on the part of the tenant, and the trial court correctly so held.

The contention of plaintiff, that where an occupant of land pays the taxes on the land he is presumed to do so to protect the paramount title, is without merit. Perszyk v. MilwaukeeE. R. L. Co. (1934) 215 Wis. 233, 254 N.W. 753, cited by him, has no application to the facts of this case.

By the Court. — Order affirmed.