Mather v. Hutchinson

| Wis. | Jun 15, 1869

Paine, J.

The counsel for the appellant would hardly contend, that, if the facts testified to on the part of the respondent, and not contradicted, in relation to the manner in which a redemption was prevented, were true, the respondent ought not to have relief, at least in equity, against the appellant’s tax deed. No one could reasonably so contend. Those facts show a fraudulent collusion, on the part of the clerk of the board of supervisors and the appellant’s agent, by which the redemption was prevented. Even if it be conceded that the time for redemption expired on Saturday night, and that after that the field was open to a race of diligence between the tax-title holder and the original owner, still that race must be a fair one.. Here the agent of the original owner was on hand to redeem. He saw the clerk of the board on Sunday; the latter promised not to open his office the next morning until eight o’ clock, and that a fair opportunity for redemption should be given. Then, in violation of that promise, he evidently sought out the agent of the holder of the certificate, and went at six o’ clock on Monday morning and executed the tax deed, and got it put on record. Such conduct in an officer is exceedingly reprehensible, and it clearly constituted a fraudulent prevention of the redemption. The agent of the original owner was thrown off his guard, and lulled into a false security by this false and fraudulent promise, on which he had a right'to rely.

It is not necessary to determine that a deed could not be legally executed out of the usual business hours of the office. But when it is so executed in violation of a promise, by the officer to the other party in interest, not to open his office till the usual hour, and to then allow him a fair opportunity to exercise his right of redemption, it is fraudulently done, and may be avoided for the fraud.

It was actual fraud. There can be no doubt that the officer communicated all the facts to the agent of the certificate holder. They laughed together afterward at the success of the trick.

Such a fraudulent prevention of redemption, and procurement of the execution and recording of a tax deed, must be held to avoid the deed at law as well as in equity. It is a general rule that actual fraud vitiates every thing, both at law and in equity. The remedy in equity was sometimes more complete, and therefore preferable. But wherever the fraud could be satisfactorily shown in an action at law,' it was equally available. And, under the present practice there is no substantial difference between the actions in respect to the facility of getting at the truth.

The evidence upon this subject was - objected to, -upon the ground that these facts were not alleged in the answer. But the action was for the recovery of real estate. The complaint was in the ordinary form, and did not disclose the origin of the plaintiff’s title. And we have held that in such an action, under such a complaint, the defendant, under the general denial, must be allowed to prove any thing which, would defeat the title offered by the plaintiff. Any other rule would place him at a great disadvantage. The plaintiff, not being bound to disclose the title relied on in his complaint, may, at the trial, offer any evidence of title which he pleases. With such a rule as to the plaintiff, it would be manifestly unjust to exclude the defendant from proving that the title offered by the plaintiff was void for fraud or any other reason, because he had not specifically set forth the facts in his answer. It would require him to foreknow and avoid, by specific allegations, a title which the plaintiff was not bound to disclose at all. See Lain v. Shephardson, 23 Wis. 224" court="Wis." date_filed="1868-06-15" href="https://app.midpage.ai/document/lain-v-shepardson-6600024?utm_source=webapp" opinion_id="6600024">23 Wis. 224.

As there was no conflict in the evidence upon this subject, and we can see that for this reason the verdict and judgment were clearly right, without regard to the correctness of the rulings upon other points, the judgment must be affirmed.

By the Court. — Judgment affirmed.