Mead v. Supervisors of Chippewa County

41 Wis. 205 | Wis. | 1876

Cole, J".

In this case the circuit court found upon the evidence certain facts which showed that the several tax sales for the years 1861, 1862, 1865 and 1866 were illegal and void; and consequently held that the county was liable to repay the plaintiff the amount which he had paid on the tax certificates, together with the subsequent taxes and charges. No exceptions were taken to these findings of fact, and therefore the only question we have to consider is, whether, admitting them to be correct, the judgment in favor of the plaintiff can be sustained. It seems to us this question must be answered in the affirmative. The action is brought under the provisions of ch. 22, Laws of 1859, which render the county liable in certain cases for moneys paid by the purchaser on invalid sales, even when the invalidity is not discovered before the execution of the tax deed. There can be no doubt, upon the facts, that the tax sales were void, and we cannot see why the cause of action is not complete under the statute. It is insisted, however, by the learned counsel for the county, that the proof in the case shows that the discovery of the illegality in the tax sales was made prior to the conveyance, and that the tax deeds were taken by tlie plaintiff with full knowledge of snob illegality and for tbe sole purpose of making this claim against the county. This is an action at law, and, as no exceptions were taken to the findings, we cannot review the evidence, but “only look into the same for the purpose of determining whether the conclusion of law was warranted by the facts found.” Felch v. Lee, 15 Wis., 265; Gilman v. Thiess, 18 id., 528; Wisconsin R. Imp. Co. v. Lyons, 30 id., 61. We must assume that the facts are as stated by the circuit court. If the facts relied on to defeat a recovery were deemed material, the county should have asked the circuit court to find with reference to them, and then have taken an exception if the finding was not satisfactory. But as the case stands, we only examine the findings to see if they are sufficient to sustain the judgment. The circuit court omitted to find when the invalidity in the tax sales was first discovered, whether prior to or after the execution of the tax deeds. The point, therefore, raised by counsel is not properly presented.

The same observation applies to the question in regard to the possession of the lands embraced in the tax deeds. It does not appear that the plaintiff was ever in possession of any of them. Non constat but that the original owners were always in the actual undisturbed possession.

It follows from these views that the judgment of the circuit court must be affirmed.

By the Gowrt. — Judgment affirmed.