Stoelker v. Cappon, 19 N.W.2d 896

Stoelker v. Cappon

19 N.W.2d 896 | Wis. | 1945

Action to quiet title commenced by Bernard Soref August 29, 1942, against Mary E. Cappon and Milwaukee county. Soref transferred his interest to Joseph Stoelker, Jr., and Marie Stoelker, his wife, who were substituted as plaintiffs. Mary E. Cappon pleads a counterclaim asking for judgment declaring certain tax deeds under which plaintiffs claim title null and void and for their cancellation. Judgment plaintiffs. Defendant, Cappon, appeals.

Plaintiffs claim absolute title to the real estate in question by virtue of certain tax deeds issued by the county clerk of Milwaukee county on August 5, 1942. Defendant Mary E. Cappon in her answer alleges irregularities in the issuance of the tax deeds making them of no effect. She contends that the proof of notice of application for tax deeds filed with the county clerk on May 4, 1942, is insufficient; that the affidavit of J. Haessley states that he served said notices on Mary E. Cappon when in fact the notices were served by J. B. Schrank, deputy sheriff; that no written notices of application were served on William L. Coffee, as director of Milwaukee county institutions. She also alleges that the description of the real estate in said notices is too vague to properly describe it, and that said notices do not state the amount for which the lands were sold; that the affidavits of service of the notice refer to certificates issued by the city treasurer of Milwaukee county when in fact the notices attached to these affidavits refer to certificates issued by the Milwaukee county treasurer.

It is established that Mary E. Cappon, owner of the premises in question, was in fact served with notice but that the return filed with the register of deeds and county treasurer was signed by a deputy sheriff other than the one who actually made the service.

The premises in question were leased by the owner, Mary E. Cappon to the director of the Milwaukee county institutions and departments. The premises were used for commissary purposes in distribution of supplies to recipients of county *455 relief. The relief activities were conducted by L. B. Glassberg. It is undisputed that service of the notices was made on both Benjamin Glassberg and the county clerk of Milwaukee, as agent of the county, and that proof of such service was proper.

The trial court found that the notices of application do comply with provisions of sec. 75.12, Stats.; that the description is sufficiently certain to describe said real estate; that the notices contain the amount for which the lands described therein were sold; that Mary E. Cappon was served in accordance with law, and that the said tax deeds were executed in full compliance with the statute. An examination of the notices reveals that the description of the land involved is such that it can be adequately identified, and that the amount for which it was originally sold to Bernard Soref is contained in the notices. The objections, resting upon claims of defects in description and failure to state amount, were properly overruled.

The central point of dispute is the question of whether sec.75.12 (1), Stats., was complied with in the matter of service of the notices of application for tax deeds. That section, at the time these transactions occurred, provided in part that whenever any lot or tract of land shall be sold for taxes, which has been in actual occupancy or possession of any person other than the owner, a deed shall not be issued unless a written notice shall have been served personally or by registered mail with return receipt demanded upon the owner or such occupant. There was an admission of receipt of notice by defendant. Sec. 75.12 (2) required that the proof of service or returned receipts be filed with the officer whose duty it is to issue *456 such tax deed before such deed shall issue, and a copy of proof of service or the return receipt shall be filed with the county treasurer.

The statute is in the alternative. A notice must be served on either the owner or occupant. Hence if either of the purported services is good, the statute was complied with.

Appellant contends that not only is service to be made but also that proof of service be filed, and that since the proof of service was made by a deputy sheriff who did not actually serve the notice, there is no valid service. It is true that statutory requirements must be strictly complied with in proceedings to obtain a tax deed. McHardy v. State (1943),215 Minn. 132, 9 N.W.2d 427. But to hold that as a matter of law the statute has been breached because proof of service was made by a different officer than the one who served, although the fact of service is admitted, is to give an overwhelming weight to the letter as against the purpose to be accomplished. The purpose of the notice is to apprise the owner of the proceeding in order to give him an opportunity to redeem the premises from the tax lien. The purpose of providing for the filing of proof of service is to make sure that the notice has reached the one from whom the tax is due and eliminate the necessity of extraneous proof of such service. Here there is proof of the service of notice to the interested individual. Nothing could make the service of the notice appear to have been made, more certain then the solemn admission, by the proper person, of personal service. When this is accompanied by services of notice upon the county clerk and the agent of the county actually in charge, sufficient notice to the occupant of the premises surely appears. The building was used for county purposes. The fact that the director to whom the lease ran was an appointee of the Milwaukee board of public welfare, which is a creature of the legislature, does not alter the fact that the county, in its relief activities was, after all, the actual occupant. As respondent points out, all except one *457 of the members of the welfare board are appointed by the county board of supervisors; its rules and regulations are subject to change by the county board and its duties are "advisory and policy forming only," sec. 46.21 (2) (a), Stats. To deny that it is an agency of the county would result in an attempt to separate a part from the whole of an entity and an unnecessary drawing of lines between the various departments and facilities of a municipal government. It is considered that the service made was sufficient notice to the occupant.

By the Court. — Judgment affirmed.