22 Wis. 602 | Wis. | 1868
Lead Opinion
This action was brought upon the covenants of a deed executed and delivered by the defendant to the plaintiff, bearing date January 12, 1861. The deed- contained the covenant that, at the time of the delivery thereof, the defendant was well seized of the premises conveyed as of an indefeasible estate of inheritance in fee simple; that the
It was admitted by the parties, on the trial of the cause, that prior to 1857, by an act of the legislature, it was provided that farming lands within the corporate limits of the city of Janesville should, for all purposes of taxation, be subject to a lesser rate of taxation on the valuation than other lands, and that the premises in question were re-assessed in 1857, in pursuance of said act, as farming lands, at a less per cent, on the valuation than platted lands. Also that said act was adjudged by the supreme court to be invalid; and that the aforesaid tax, assessed under the same, was illegal. It was also admitted that the premises in question were in fact farming lands in 1857, and have so remained to the present time.
It was further admitted that subsequent to the decision of the supreme court, holding said act of 1854 invalid, an act
The question now is, Do these matters show a breach of the covenants of the deed ? It is claimed that they do; and the breach relied on is, that when the deed was delivered, January 12th, 1861, the taxes for 1857 had not been paid, and, although not legally assessed at that time, yet, by the subsequent re-assessment in 1862, they became an actual burden upon the land, and must be treated as an incumbrance from the time the assessment roll for 1857 was completed. Eor it is said, when the land was properly assessed at that time and the aggregate amount of state, county and city taxes for the city of Janesville was determined and certified, that then the land became liable, in proportion to its value, to pay its just share of this aggregate amount; and that when the taxes for 1857 became legally adjusted or charged upon the land at a subsequent period, they should be referred to and date from the time the amount of taxes was determined and certified. See sections 46 to 51, chap. 15, R. S. 1849. And this would make the taxes an incumbrance upon the property at the time the deed was executed, and bring them within the covenants. My brethren think this view of the case is correct. I have had considerable doubt upon the matter, but I am not prepared to say that their view is unsound. Certainly their conclusion derives great support from the case of Hutchins v. Moody, 30 Vermont, 656; and same case in 34 Vermont, 433. That was an action of cov
But it is said that section 130, chap. 15, R. S. 1849, conclusively settles the question, and shows that the tax in this
By the Court. — The judgment of the circuit court is affirmed.
Dissenting Opinion
I dissent upon the last point discussed in the foregoing opinion.