Menasha Wooden Ware Co. v. Harmon

128 Wis. 177 | Wis. | 1906

Siebeceeb, J.

Tbe court received letter-press copies of letters in evidence over objection. An exception is urged to tbis ruling. Tbe copies received were of letters Mr. Wash-burn bad sent to tbe county clerk asking for a statement of all unpaid taxes on tbe lands involved. They were objected to upon tbe ground that there was nothing to show that tbe originals were not in existence and that they could not have been produced if proper steps for their production bad been taken. The circumstances do not disclose but that tbe originals were in existence in tbe custody of tbe county clerk, and under a proper subpoena could have been brought into court. True, defendant shows that they were not in bis possession or under bis immediate control; but, although tbe right to subpoena tbe custodian and to demand their production for tbe purposes of evidence is not questioned, be failed to do so. Under such circumstances no proper foundation is shown entitling him to offer copies as tbe best obtainable evidence on tbe subject. Newell v. Clapp, 97 Wis. 104, 72 N. W. 866; Diener v. Schley, 5 Wis. 483. Tbe original- letters and letter-press copies are not regarded as being duplicates. 2 Wigmore, Ev. § 1234, subd. 2, and note 3; State v. Halstead, 73 Iowa, 376, 35 N. W. 457; Seibert’s Assignee v. Ragsdale, 103 Ky. 206, 44 S. W. 653.

It is contended that tbe court erred in bolding that there was a constructive redemption from tbe sale of 1880, upon tbe ground that tbe evidence is clear that tbe failure to redeem from tbis sale is directly attributable to tbe fault and neglect of Mr. Washburn in bis attempt, as agent of tbe trustee and tbe beneficiaries, to redeem from all outstanding tax sales and deeds. From tbe facts above stated it is clear and without dispute that Mr. Washburn bad sole and full charge of tbe business of tbe redemption of these lands from tbe tax sales. He bad personal knowledge of tbe fact that no taxes bad been paid by or for him for some years immediately preceding tbe trust deed, and that tax deeds bad issued on tax certificates. He procured an abstract of the title to this land shortly before he attempted to redeem, and this abstract contained a statement of the tax sale of 1880 and that a tax deed had issued thereon. In his request to the clerk for the amount due for unpaid taxes he included the description in question ■with others, without specifying the years for which the lands had been sold for taxes. The statement furnished by the clerk included no sale prior to 1883. Washburn made no examination'of this statement, nor comparison of it with the abstract in his possession, to ascertain whether it covered and included all unpaid taxes and sales. He likewise omitted to so examine and compare the redemption receipt issued after payment of the amount specified in the clerk’s statement; and he at no time, until the time for redemption had expired, specifically brought to the attention of the county clerk the fact that there had been a sale of this land for taxes in 1880. It is manifest that, had he done so, the record of such sale would readily have been discovered in the records of the clerk’s office. Hnder these facts and circumstances it seems obvious that the failure to redeem from the sale of 1880 was fully as much due to the fault and neglect of Mr. Washburn as of the county clerk, and it cannot be said that such failure is wholly attributable to the mistake and negligence of the clerk. Mr. Washburn had personal knowledge that the taxes had not been paid from a time antedating the trust deed up to the time when the clerk furnished this statement. Furthermore, had he examined the list furnished him, or the redemption receipt, or compared them with this abstract, he would have discovered the omission and thereby have obviated all liability of a failure to redeem from this sale. This conduct established the failure to redeem as attributable to the neglect of the re-demptioners. Hnder such circumstances the consequences of such neglect are to be borne by the defendant, upon the ground that “the case presents no other ground of equity than would exist in any case where, through inadvertence or misapprehension, tlie party has failed to assert his right in due season; and he will be left by the law where his own negligence or inattention has placed him.” 2 Cooley, Taxation (3d ed.) 1049; Black, Tax Titles (2d ed.) § 362; Easton v. Doolittle, 100 Iowa, 374, 69 N. W. 672; Hollinger v. Devling, 105 Pa. St. 417. We must hold that the court erred in holding that, there was a constructive redemption from the sale of 1880 of the land involved. The plaintiff is the owner of the lands described in the complaint, and is entitled to judgment establishing its title and barring defendant from any right or title thereto.

The other questions presented and argued by counsel for the parties, and by counsel who appeared as amici curiae, are not necessarily involved in a final determination of the rights of the parties, and we therefore express no opinion upon them.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in plaintiff’s favor in accordance with this opinion.

Cassoday, C. T., took no part.