42 Wis. 355 | Wis. | 1877
Lead Opinion
These are cross appeals from the same judgment. The action is to recover money paid on void tax certificates. The plaintiffs are dissatisfied with the judgment because the amount recovered was less than they claimed; the county is dissatisfied because there was any recovery. The objections to any recovery will first be considered.
The first error assigned is, that the circuit court erred in holding that the county board, or that court on appeal, had jurisdiction of the action. It is said the right to present a claim to the county board for allowance, and to appeal from its decision, is purely statutory, and that the stipulation of facts shows that the claim as presented to the county board was for a greater amount than was paid the county. It is insisted that this was contrary to the provisions of ch. 250, Laws of 1873, and had the effect to deprive the board of all jurisdiction in the matter. "Without, however, stopping to consider the grave objections urged against the validity of that act, it manifestly was not intended to deprive the county board of any jurisdiction which it had previously exercised in the allowance of claims. The act plainly recognized the right of the holder of the invalid certificate to present his claim for the amount paid thereon, and such presentation should doubtless be made to the county board, which has the power to allow it. The case of Stringham v. The Board of Supervisors of Winnebago Co., 21 Wis., 594, to which we are referred upon this point, does not seem to have any application. Here the county board had jurisdiction to act upon the claims; and, that board having disallowed or refused to pay them, the plaintiffs had the right to an appeal.
The answer which the county was permitted to file in the
It was also insisted that the purchase of the tax certificates by the plaintiffs, under the circumstances disclosed, operated as a voluntary redemption of the lands from sale, and that therefore there can be no recovery. But it is sufficient to say that the lands were not subject to taxation when sold (Denniston v. The Unknown, Owners, 29 Wis., 351), and consequently there were and could be no taxes levied upon them. This is all we deem it necessary to say on the appeal of the county.
On their appeal, the plaintiffs insist that the circuit court erred in holding that they were entitled to recover only fifty per cent, of the face of the certificates (this being the amount paid by Denniston to the county), with interest. On what principle of law it can be successfully maintained that the county is liable to refund more money than it received on the certificates, we are at a loss to understand. It is obvious that this is an action to recover bach money paid for a consideration which has wholly failed. The question therefore is, What is the measure of the recovery in such a case? It seems to us that it is the money paid the county for the certificates, together with lawful interest. It is difficult to perceive any principle of law or equity which will allow the plaintiffs to recover more than this amount. Suppose Denniston himself had brought the action: could he have recovered of the county more money than he paid? Would he have been allowed to recover money which the county had not received, and which he had not paid on these certificates? The proposition seems too plain for argument on general principles, that the county is only bound to refund the money it has received, and interest. The same rule should govern as in case of a sale of real or personal property, on failure of title, where there is an express or implied warranty. There the general rule is, where it
Nor do we think any greater liability is imposed upon the county by the statutes on the subject. The learned counsel for the plaintiffs on this point refers to the provisions of ch. 22, Laws of 1859, as authorizing a recovery for the full face of the tax certificates, whether purchased of the county at a discount or not. But we do not think this statute, or any other to which our attention was called, sustains this position. It is true, the law of 1859 provides that where it is discovered, etc., that the sale of lands for taxes is invalid, the county board or other officers of the county shall cause to be refunded the money paid on the sale. The statute is framed on the equitable principle that money paid the county on a consideration which has failed, shall be recovered back. This is in the case where the lands are bid off at the sale by an individual. But here the lands were bid in by the county, and the certificates were afterwards sold to Denniston for fifty per cent, of the face thereof. . Under these circumstances there is nothing in this law which requires the county to pay the holder any greater .sum than it received for the certificate, with interest. This decision is confined to the facts of this case. Whether a different rule would obtain in the cases supposed by counsel, it is unnecessary now to determine. Those cases may well be left for adjudication as they arise.
It follows from these views that the judgment musí be affirmed on both appeals.
By the Court. — So ordered.
Rehearing
On a motion by the defendant for a rehearing, a brief was filed, signed by John E. Clover as attorney, andP. L. Spooner, of counsel. They contended: 1. That the action of the board
In reply, the counsel for the plaintiffs contended, in substance: 1. That it w.as error to regard the claim presented in 1873 as simply a joint claim; that the demand made upon the board was in behalf of the complainants separately, according to their separate interests; and that although those separate interests were not stated in totals, yet any one could ascertain from the account, as rendered, the sum total going to each claimant, and also the claimant for each item. 2. That in determining the character of the action taken ■ by the board on the claim of 1873, and on that of 1874, respectively, controlling importance should not be attributed to the technical language used, but rather to the reasons assigned by the board for their action; and that, tried by this test, the action of the board in 1873 was not a determination that the several claimants were not entitled to the sums demanded by them, but merely an objection to the manner in which their claims were presented; while the action in 1874 was an absolute denial that plaintiffs were entitled to receive from the county the sum which they demanded, and was therefore a disallowance of their claim.
The motion for a rehearing was denied.