Manseau v. Edwards

53 Wis. 457 | Wis. | 1881

Cole, C. J.

This is an action to foreclose tax certificates. The objection was taken on the trial, and is renewed here, that it was incumbent on the plaintiff, in order to be entitled to a judgment of foreclosure, to allege and prove that all the proceedings, from the listing of the land for taxation down to the sale for taxes, had been in conformity to law.

In Durbin v. Platto, 47 Wis., 484, which was a similar action, it was decided, on demurrer to the complaint, that it was no more necessary to set out in the complaint the proceedings antecedent to the certificate, than it was in an action to foreclose a mortgage to state the transactions of the parties antecedent to the giving of the mortgage. That decision was based upon the languagé of the statute, which provides “ that all the rules of law and practice relating to the foreclosure of mortgages by action,” and “ the rides of pleading and evidence therein, ... so far as they are applicable,” shall prevail in these actions. Chapter 181, Laws of 1872; section 1181, E. S.

That case, it is true, only involved a question of pleading, but the decision has an important bearing here. It pointedly answers the objection that the complaint failed to state a cause of action, particularly because it does not allege the liability of the land for taxation, or the proper levy of a tax, or the sale of the land for a tax. If that decision is sound (as we have no doubt it is), it was not necessary to allege these matters in the complaint; and if it was not necessary to allege these facts in the complaint, it would seem to follow, logically, that it was not incumbent on the plaintiff to establish or prove them on the trial in order to make out his case. But the ingenious counsel for the plaintiff further argues and insists, that, as the statute declares that the laws and rules of practice which relate to the foreclosure of mortgages, both as to pleading and evidence, shall apply to this action, so far as it is possible to apply them, this relieved the plaintiff from making proof of any such facts, or from showing that all the anterior tax proceedings were regular. He says the meaning of this statute is, that the same rules of evidence shall apply to these instruments in an action to foreclose them, as apply to a note and mortgage in a foreclosure action; that is to say, when the plaintiff has introduced his tax certificate in evidence, he makes out his case as fully as he does by the introduction of a note and mortgage in a foreclosure action, and is not called upon to go any further to establish his right to a judgment. We have no doubt that this is a correct interpretation of the statute in question. Indeed, the construction which is contended for by the counsel on the other side practically renders the provision useless. Tie claims that it merely means that the court shall not apply the rules of strict construction which prevail when parties are pursuing a new remedy resting entirely upon the statute. But if this were its object, it would seem to be quite unnecessary. We think, however, it has a far different purpose, and ■was intended to make the production in evidence of a tax certificate sufficient to establish a cause of action in this class of cases, thus relieving the plaintiff from the onus of showing that all the tax proceedings, from the listing of the land for taxation to the sale, were regular and in conformity to law. In the absence of the provision, it would probably be necessary for the owner of the certificate, when he sought this remedy, to plead and prove every essential step in the tax proceedings up to the sale. A tax deed is made presumptive evidence of the regularity of the proceedings (section 1176), but there is no such provision declaring the effect in evidence of the tax certificate, except the one above cited. But that provision has the effect to make the tax certificate prima, facie evidence of the regularity of all the prior tax proceedings, including the liability of the land to taxation. This proceeding to foreclose a tax certificate is one especially favorable to the owner, who has an opportunity by it to discharge the lien, if valid, and save his land. It is not at all in the nature of a forfeiture.

But it is objected that the tax certificate on the sale of 1878 was not in the form prescribed by law (section 64, ch. 22, Laws of 3859, and section 171, ch. 18, Tay. Stats.), and therefore was improperly admitted in evidence. The particular objection is, that the words “according to the facts,” at the énd of the certificate, are omitted. But these words were obviously intended as a direction to the officer in regard to the manner of filling out the certificate. That being its object, the reason for the decisions in Lain v. Cook, 15 Wis., 146; Lain v. Shepardson, 18 Wis., 59; Wakely v. Mohr, id., 321, does not apply.

The defendants offered evidence to, show that the taxes in the town of Bed Eiver, where the land is situated, for the years 1876 and 1877, were invalid. The evidence was objected to and excluded on the ground that the statute of limitations had run on the certificates, and that any errors in the tax proceedings prior to their date could not be shown. The plaintiff relies upon section 7, ch. 334, Laws of 1878; section 1210e, E. S., and section 3, ch. 309, Laws of 1880, to sustain this ruling. The validity of these statutes of limitation and their application to these certificates was, in effect, considered in Mead v. Nelson, 52 Wis., 402. In that case it was determined that these tax certificates are protected by the statute of limitations, and all remedies to avoid them are barred by lapse of time. The limitation under the statute of 1878 had expired before this action was commenced. It had begun to run when the revision took effect, and, under section 4884, continued to run notwithstanding the repeal of that act. It is said that these statutes of limitation do not apply in letter and in spirit to the case of foreclosure of certificates, where the owner of the certificate has the option to take a deed or foreclose the certificate. But this position is adverse to the decision in Mead v. Nelson. The point is also made that the limitation does not apply except where the tax-payer is the actor, and does not preclude him from setting up a defense to the certificate when he is attacked. The decision in Mead v. Nelson is also adverse to this view7.

"We think the judgment of the circuit court must be affirmed.

By the Court.— Judgment affirmed.