143 Wis. 500 | Wis. | 1910
The important question in this case, to which all others are merely subsidiary, is whether the county abstract books of Bode county are a part of the public records of the register’s office. If they are, any person has a right to copy them under the reasonable supervision of the register of deeds, even for the purpose of making a rival set of abstract books. Sec. 700, Stats. (1898); Hanson v. Eichstaedt, 69 Wis. 538, 35 N. W. 30.
It is argued on behalf of the county that the abstract books were merely the literary property of the county and not public records, and hence that the county could prevent the copying of the books and thus protect itself from competition in the abstract business. This argument is based principally on the fact that in January, 1881, when the county board authorized the making of the contract with Valentine to compile the abstract books, there was no provision of law authorizing or requiring the county to keep any such books, and hence it is claimed that the status of the books as merely literary property was then irrevocably fixed, and could not be changed by any subsequent legislation which recognized the right of the county to make and keep abstract books as part of the public records.
We are unable to agree with this argument. It is true that there was no express provision of law in force in Janu
Thus it appears that the condition of the law when the county board was considering the question of establishing a tract index system in 1880 was this: A tract index was authorized to be kept, but there was no express authority to establish abstract books, although a complete abstract system had been twice permitted to be substituted for the tract index under time limits which had expired. It seems a fair presumption that in some county or counties abstracts had been instituted as a part of the county records under the acts of 1864 and 1867. Under these circumstances the county board concluded not to install the tract index system, but to obtain and keep up a complete set of abstract books “to be made and owned by the county,” as is said in the report of the committee recommending the scheme, which report was adopted by the county board. That this system was adopted because it was believed to be a public benefit there can be no doubt from the wording of the report above referred to.
It appears that the written contract for the making of the abstract was 'not executed until March 17, 1881. On the 22d of the same month ch. 149 of the Laws of 1881 was passed, which provides in substance that any county having a tract index may discontinue the same “whenever such county may have adopted, or may hereafter adopt and shall keep and
Thus the county had assumed that it might lawfully procure the abstract books and keep them in the register’s office for the benefit of the public, and before any substantial work was done on the system the legislature passed a law authorizing the installation of just such books in the register’s office as-a part of the public records, and thereafter the work was done, the books accepted and placed in the register’s office while the provisions of this law were in full force and effect.
A county is a governmental agency with limited powers, all of which are prescribed by the statute. Frederick v. Douglas Co. 96 Wis. 411, 71 N. W. 798. It will hardly be claimed that Rock county had power to go into the abstract business for profit, without legislative authority, although such authority has now been given to counties having a population of 60,000 and over. Ch. 326, Laws of 1909. -When it had, however, assumed that it had power to install abstract books as a part of the public records and made a contract for the compilation of the books, and the legislature immediately supplied the necessary authority and the work thereafter proceeded to completion, would it not be hypercritical to say that the books are not public records because the formal contract for them was made a few days before the legislature authorized the making of such a contract ? We think so, and so thinking we reach the conclusion, following the Eichstaedt
It appears that the respondent purchased the sixteen books, in question of the purchasing committee of the county board. It is argued, and not seriously disputed, that this committee had no authority to sell the county property, and hence that, the respondent acquired no title to the books. Before the commencement of this action the county demanded the return of the books and tendered back the money paid therefor,-and', now claims the right to the possession of the books on the-ground that the title never /passed to the respondent, even should it be held that the county abstract books themselves are^ public records and may be properly copied. It is a fact, however, that the defendant has laid out about $900 in transferring into these books the entries in the abstract books of the county, so that they constitute now a partially completed abstract system worth at least the amount so expended, instead' of a set of blank books which could be duplicated at any book bindery. There seems no question of the good faith of the defendant in making the purchase and copying the entries into the books. It would be manifestly grossly unjust to take-from him the money and labor which he has spent in good faith in transforming mere blank books into a partial abstract system. Courts of equity do not allow themselves to be made-the instruments of injustice in this manner. He who appeals to equity must do equity, and it is certainly not equitable to-require the return of a partial abstract system worth $900 in place of mere blank books worth $48, especially when the $48 has been paid and the blank books may be easily duplicated..
Even in actions at law like replevin this court has held, that, where the value of the property is sought to be recovered, only the value before it was improved by defendant’s labor-an! skill can be recovered where the improvements were made-by defendant under a good-faith belief in his title. Hunger-
As to tbe claim to recover balf of tbe fees received by tbe ■defendant for making abstracts during tbe first quarter of tbe year 1910, we conclude that tbe circuit court rightly denied a recovery in this action. Tbe plaintiff brought its .action in equity, stating all tbe facts which it claimed entitled .it to tbe purely equitable relief by way of injunction and surrender of tbe books. Among these facts were certain facts which it is claimed entitled it to relief by way of recovery of balf tbe money received by tbe defendant for abstracts; but these were not stated as a separate cause of action, but only as incidental to tbe main equitable relief by injunction, under tbe familiar principle that where equity takes bold of a given situation and affords equitable relief it will in tbe same action give relief for all claims incidental to tbe main equitable cause of action. Swihart v. Harless, 93 Wis. 211, 67 N. W. 413.
Under tbe decisions of this court there are two well defined cases where a plaintiff who has planted bis suit in equity .and failed to sustain it may be given purely legal relief if tbe proof shows that be has a good cause of action at law therefor: first, where a 'cause of action in equity once existed and is .stated in tbe complaint, but, because of tbe happening of some •event for which tbe plaintiff is not responsible, it no longer exists (Cole v. Getzinger, 96 Wis. 559, 71 N. W. 75); second, where, although a cause of action in equity never in fact existed, tbe plaintiff alleges a good cause of action in equity, in good faith believing it capable .of proof, but fails to prove some fact essential to a recovery in equity because such fact never existed. Franey v. Warner, 96 Wis. 222, 71 N. W. 81. In both cases, however, tbe complaint must state a good cause ■of action in equity, and tbe plaintiff must in good faith believe it to exist at tbe time.
In tbe present case no cause of action in equity ever existed
It seems fair to presume that no such action will be necessary. The rights of the parties in the boohs being now settled, there seems no reason why the defendant should not pay over the county’s share of the fees and obviate further litigation. He stated in his comm unication to the county board of April 1, 1910, that he was prepared to pay over one half of his earnings for abstract work for the preceding qu.arter as soon as he was “properly advised in the premises.” There ought to be no need of further lawsuits and we assume there will be no such need.
By the Gowrt. — Judgment affirmed.