Potts v. Cooley

56 Wis. 45 | Wis. | 1882

Cole, 0. J.

After his tax deeds were declared void by this court, because issued without proof of the service of the requisite notice upon the person in possession,— see Potts v. Cooley, 51 Wis., 353,— the plaintiff commenced this action, August 17, 1881, to foreclose the tax certificates under sec. 1181, R. S. The learned counsel for the defendant insists that such an action cannot be maintained aftertax deeds had been issued based on the certificates, especially where it appeared that the owner had been in possession of the premises for two years subsequent to the issuing of the tax deeds. We deem this position untenable. The statute provides that the holder of any tax certificate, at his option, in lieu of taking a tax deed “ at any time after three years from the date of such certificate and before he would be barred from demanding a deed thereon,” may foreclose the same by an action as in case of mortgage on real estate. Sec. 1181. The certificates were dated more than three years prior to the commencement of the suit. The lands were bid in at the tax sale by the county, and the tax certificates were assigned to the plaintiff by the clerk, May 19, 1877. The limitation for issuing a tax deed on the certificates would not expire until the expiration of six years from the date of the assignment. Sec. 1182.

The same counsel further insisted because the plaintiff had taken tax deeds on the certificates he could not after-wards bring an action to foreclose them though the deeds were void. He says the statute gave him an option to take one of two remedies, and when he has exercised that option once he is bound by it. Therefore, that the only course now open to him is to take another tax deed under sec. 1180. We are not able to concur in such a construction of the statute. To our minds no valid or satisfactory reason has been assigned for adopting the opinion that because the holder has taken a void deed on his tax certificate he is thereafter barred from maintaining an action to foreclose it. The statute certainly does not so declare. Nor can it with accuracy be said that the tax certificate has been extinguished or discharged by the issue of an invalid deed upon it; or that the lien created by the certificate has been merged in an instrument which is void and of no effect. It is true, sec. 1180 provides, when a deed, or instrument intended to be a deed, shall have been issued for nonpayment of taxes, “ no other deed ” shall be made therefor except in the manner therein prescribed. But this provision has no reference to a deed given on foreclosure proceedings, but was intended to supersede the remedy sustained in State v. Winn, 19 Wis., 305. See Revisers’ Notes, § 1180. That prohibition evidently applies to a tax deed alone. But counsel says that it was the legislative intent, after a person has once taken a tax deed which is void, he should acquire the title to the land in no other way than by taking another tax deed, and that all other remedies are denied him. We fail to discover any such legislative intention.

We have already said enough to show that the statute of limitations does not bar the action. Counsel seems to rely upon sec. 1210íü as a bar, but we cannot see as that section has any application to the case.

It is further insisted that the plaintiff never became the owner of the tax certificates upon which the action is based. The plaintiff was a purchaser from the county, and continued to be the owner of the certificates notwithstanding a void deed had been issued upon them. The certificates were assigned in the following manner, by the words, “Assigned May 19,1877. J. P. Cabpekteb, County Clerk,” partly written and partly printed across one end of the “faee ” of the certificate. It is said the statute required that the assignment should be on the “ 'baek ” of the certificate. We can give the statute no such refined or technical construction. We are entirely clear that an assignment could be made by the officer on the face of the certificate which would meet all the requirements of the statute. Proof was given of a resolution of the board authorizing the clerk to assign tax certificates which belonged to the county, upon production to him by the purchaser of a certificate from the county treasurer that the amount of such tax certificate had been paid that officer. This resolution was adopted by the board in November, 1861, was a continuing authority to the clerk in office to execute such assignment until revoked,— Meade v. Nelson, 52 Wis., 402,— and we must presume that the clerk had the proper certificate of the treasurer before him when he executed the assignments in question. Manseau v. Edwards, 53 Wis., 457.

Again, it is insisted that the court below erred in allowing, in the judgment of foreclosure, interest on the certificates at the rate of twenty-five per cent, per annum. Tax certificates, by express provision of law, draw interest at that rate. Sec. 1165. The amount of the tax certificate — that is to say, the sum for which the land was sold, and all subsequent charges thereon authorized by law, together with interest at the prescribed rate — are made a lien upon the land. The certificates being valid, the plaintiff was entitled to a judgment of foreclosure to the extent of his liens. This seems too plain for discussion. ’ As a conclusion of law, the court held that the plaintiff was entitled to recover of the defendant for attorney’s fees in the action, in addition to the taxable attorney’s fees, the sum of $25. This was error,— Patrick v. Carroll's Will, 53 Wis., 228; Wylie v. Karner, 54 Wis., 591,— and must work a reversal of the judgment. But, as there is no other error in the judgment, in order to avoid the expense of a new trial the plaintiff may remit this $25 allowance,— Page v. Town of Sumpter, 53 Wis., 652, and Wylie v. Karner, supra,— and take the proper judgment of foreclosure.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded with directions that the court enter judgment in accordance with this opinion.