224 Wis. 1 | Wis. | 1937
The appeal is from an order of the circuit court imposing as a condition of a one-year extension of time
The respondent contends that a party cannot appeal from an order granting its own motion, and cites in support of its contention Treat v. Hiles, 75 Wis. 265, 44 N. W. 1088, and Larson v. Hanson, 207 Wis. 485, 242 N. W. 184. The appellants in their brief make no response to this contention.
The form of the appeal is “from the whole of the order.” The two cases cited by respondent on this point were appeals from orders entered after verdict in jury actions. In the former, the plaintiff moved for correction of a verdict and judgment on it as corrected, or in the alternative, for a new trial on the question of damages only. The latter alternative motion was granted, and the movant appealed. In the latter case, the motions were, in the alternative, for correction of the verdict and motion on it as corrected; for judgment notwithstanding the verdict; or for a new trial. The alternative motion for a new trial was granted. The movant appealed. In both cases the ruling was that as the movant had received one of the forms of relief that he had asked for he could not be heard to complain. This rule applies to the instant case, for the form of the appellants’ motion, as set forth in their affidavit on which an order to show cause was made, was for an order “fixing the amount to be paid by defendant toward and on taxes, interest, and indebtedness as a condition to extending the period of redemption,” and “requiring the plaintiff to show cause why the period of redemption . . . should not be extended for such period of time as the court may deem just and reasonable, upon such terms and conditions as the court may fix and determine.”
After the court had first referred the matter to the county mediation board and received its recommendation, which the plaintiff had refused to accept, the final order on the motion
The appellants’ contention on the merits is that the only taxes that can be required to be paid as condition of redemption under the statute providing for extension applicable to nonhome property, sec. 281.22 (2), Stats. 1935, are the taxes for the current year, 1935, because the land had been sold for the taxes of 1934, and sale of land for taxes has been held to constitute payment of them under prior decisions of the court.
The cases cited as holding that sale of land for taxes constitutes payment of them are Lindsay v. Fay, 28 Wis. 177, and Pereles v. Milwaukee, 213 Wis. 232, 251 N. W. 255. These cases involved the meaning of the term “payment of taxes” under certain situations, and it was held that under those situations sale of land for delinquent taxes operated as a payment of the taxes. In Banking Comm. v. Wutschel, 219 Wis. 332, 263 N. W. 182, payment of taxes under sec. 278.106, Stats. 1933, providing for extension of the period of redemption in cases of mortgage foreclosure upon paying “taxes, or interest, or both,” required the payment of taxes not only of the current year, but the unpaid taxes of previous years not incorporated in the judgment. Taxes had not been paid by
Counsel for appellants urge that the ruling in the Wutschel Case is not controlling herein because the meaning given to the statute by the decisions and authorities cited in their brief herein were not called to the attention of the court in' that case, and the contention was not made therein that the taxes of 1932 and 1933 were paid by the sale of the land for the taxes of those years. We consider that6the interpretation of the statute involved in the Wtitschel Case was correct. A mortgagor is obliged under the terms of his mortgage to pay the taxes on the mortgaged land involved. The statute, sec. 278.106, Stats. 1933, intended to require the mortgagor to fulfil that obligation as one of the minimum conditions of extension. The only way he could fulfil that obligation as to land sold for taxes, was to redeem from the tax sales or pay the amount necessary for redemption. Buying outstanding tax certificates or redeeming from tax sale by a mortgagee is construed as a payment of taxes by him to the amount of the money paid and gives him right of recovery therefor under his mortgage. Hackett v. Van Dusen, 132 Wis. 204, 111 N. W. 1097. With like reason, redemption from tax sale or buying an outstanding tax sale certificate by a mortgagor
It is contended that it was not the intention of the legislature in enacting the 1935 statute to impose upon the mortgagors “burdens” in addition to those imposed by the 1933 statute which the 1935 statute repealed. Upon this hypothesis it is argued, in effect, that as the 1933 statute imposed upon the mortgagor “the burden” of paying “taxes, or interest, or both” as a condition of extension, and the 1935 statute purports to impose the “burden” of payment of “taxes and interest,” the latter statute does not mean what it says. With this we cannot agree. The language of the statute is plain, and we must give it the meaning it plainly carries.
Appellants further contend that their right to extension is governed by the 1933 statute instead of the statute of 1935
By the Court. — The order of the circuit court is affirmed.