Shepardson v. Elmore

| Wis. | Jan 15, 1865

By the Court,

DixoN, C. J.

We have read and considered the argument of the counsel for the defendants. We cannot agree with them. Turn the facts and reason upon them as we may, there was no lien or assessment before the commencement of the term. The lien accrued and the assessment was made during the term; and the language of the covenant was, that the defendants were “ to pay all taxes and assessments levied or assessed thereon during said term.” Suppose the improvements had been ordered and made during the last two months of the term, and the certificates issued and assessment made as now, but after tbe expiration of tbe term, wbo then would have been liable to discharge tbe tases ? We think clearly tbe plaintiff. He would have been liable because tbe assessment was not made during tbe term. Tbe defendants are now liable because it was.

To tbe objection that tbe plaintiff gave no proof of title or possession, our answer is, that the action is not in strictness to quiet or remove a cloud from the title. It is more in the nature of an action upon tbe covenant, and to enforce an obligation assumed by the defendants as lessees. Tbe action being founded upon tbe covenant, and proceeding upon tbe obligation of the defendants to pay tbe taxes, it can make no difference that the defendants took tbe deed after tbe expiration of tbe term. They are as much estopped from denying tbe plaintiff’s title and right of possession as if they bad received the deed during the term. The controversy originates in a violation by tbe defendants of one of the conditions of the lease, and they cannot avoid tbe estoppel by showing that tbe mischief of which the plaintiff complains was consummated in part after tbe expiration of tbe term.

Tbe judgment of tbe county court is affirmed.