58 Wis. 539 | Wis. | 1883
The question presented is important, as all questions are which bear upon the collection of the revenue of the state. It is confessed in the record that the assessor failed to annex to the assessment roll his affidavit as required by sec. 1063, R. S., as amended by sec. 6, ch. 6, Laws of 1880, or any affidavit. It was sought by sec. 2, ch. 334, Laws of 1878 (sec. 11645, R. S.), to malte such omission harmless, but the attempt was held to be abortive, as an unauthorized intrusion upon the judicial functions. Plumer v. Marathon Co., 46 Wis., 177; Tierney v. Union L. Co., 47 Wis., 248; Marshall v. Benson, 48 Wis., 565; Scheiber v.
But there is evidence tending to show that the town treasurer did have notice of the defect in the tax proceedings at the time of taking the cow upon the tax warrant. Assuming that he had such notice, the question recurs, whether the plaintiff’s remedy against the officer was in this form of action or some other. The statute prohibits the maintenance of an action of replevin in justice’s court for any property taken by virtue of any warrant for the collection of. any tax, in pursuance of any statute of this state, or by any defendant in any execution or attachment to recover goods and chattels seized on such execution or attachment, unless exempt, etc. Sec. 3732, E. S. From a casual reading of Dudley v. Ross, 27 Wis., 679, it might be inferred that such action could be maintained, but the case is clearly distinguishable. That was against the officer, and in the circuit court, and arose under a different statute, and the court dismissed the action on the plaintiff’s own showing, and under circumstances which made it necessary to assume, for the purpose of the appeal, that the warrant was void upon its face.
Under similar statutes to ours, it has frequently been held that replevin will not lie to recover property held by an
Under the authorities there can be no doubt but what the production of the warrant, regular upon its face, in evidence was a protection to the officer against this form of action. The case of Grace v. Mitchell, 31 Wis., 533, arose in the circuit court and under a different statute, and is clearly distinguishable. If the officer in fact had notice of the defect, then he was probably liable in some other form of action, as intimated in Sprague v. Birchard, supra. We must therefore hold that the action was properly dismissed as to the defendant Kindschi.
The question remains whether such action of replevin can be maintained against Klabundi, who purchased the property at the treasurer’s sale under the tax warrant. To
It has frequently been held that such action can be maintained against the vendee at the sheriff’s sale in favor of the real owner, not a defendant in the execution. Huber v. Sharck, supra; S. C. in error, 6 Bin., 2; Ward v. Taylor, 1 Pa. St., 238. Or even against the officer, who, in that event, must show that his execution is based upon a valid judgment. Bean v. Loftus, 48 Wis., 371. But under that statute an execution or attachment, valid upon its face, protects the officer having no knowledge of any irregularity or jurisdictional defect. Bogert v. Phelps, 14 Wis., 88; Griffith v. Smith, 22 Wis., 646; Battis v. Hamlin, 22 Wis., 669; Grace v. Mitchell,
In Carter v. Simpson, 7 Johns., 535, the plaintiff claimed damages to hay, the title of which he claimed by purchase under an execution at constable’s sale, and it was held that merely proving such a sale and purchase did not give him title. In Yates v. St. John, 12 Wend., 74, it was held that a purchaser of personal property at sheriff's sale cannot maintain an action of trover against a sheriff, who subsequently causes the same property to be sold by virtue of a judgment and execution in his favor, without proving the judgment as well as the execution under which the purchase was made. In Earl v. Camp, 16 Wend., 566, it was conceded that the officer was protected, but Mr. Justice Cowest said: “The rule is one of protection merely, and beyond that is not meant to confer any right. The armor which it furnishes is strictly defensive. It is personal to the officer himself, and cannot be used to confer any right upon wrong-doers, under color of whose void proceedings he is called upon to act. Suppose he goes on and makes sale of the property levied upon; even the innocent purchaser takes no right. To perfect his title, he must show a valid judgment, a solid foundation for the process.”
White v. Dolliver, 113 Mass., 407, was an action of re-plevin, and it was observed by the court that “ while the property was in the hands of the sheriff, and he was actually engaged in transferring it to 'the possession of the defendant, it was in custodia legis, and the officer could not have been disturbed while making the transfer. . . . But that transfer having been completed, it was in the custody of the defendant in this action, under the claim of title made by him in the original action, against which claim the plaintiff was entitled to assert his own by this process.”
In Illinois, under a^statute similar to ours, it has been held
Upon these authorities, and the policy of the statute, and the general rules applicable to its construction, we are induced to hold that the prohibition of the statute is simply for the protection of the tax collector, and to prevent any frustration or delay, i'n the collection’ of the tax, but that the prohibition of this form of action does not extend to the purchaser of property upon a sale made under the tax warrant. Such purchaser, like purchasers at judicial sale, must be left to defend upon the strength of the title which he thereby acquires.
By the Court.— The judgment of the circuit court is affirmed as to the defendant Kmdsehi, and reversed as to the defendant Kldbundi, and as to him the case is remanded for a new trial. The plaintiff having appealed from the whole judgment, and the defendants having jointly defended by the same attorneys, the plaintiff will only be allowed one half of his taxable costs.