20 Wis. 576 | Wis. | 1866
The facts of this case are correctly stated by the counsel for the respondent as follows : This action is brought to redeem certain lands described in the complaint. The defendant Mather claims to be the owner in fee of a portion of those lands, and in his answer disclaims any interest in the remainder. At the trial in the circuit court, the complaint as to Mather was dismissed. From this final judgment the plaintiffs have appealed to this court. A brief statement of the facts will assist in the application of the law. On the 7th day of July, 1846, Lydia Stratton, wife of Hull Stratton, as one of the five heirs of Matthias C. Comstock, deceased, was seized of an undivided fifth of the lands described in the complaint, of which Comstock died seized. On that day Lydia Stratton and her husband executed and delivered to the defendant Stowers the instrument hereinafter set forth. In 1847, the taxes levied on that portion of the lands now claimed by Mather were not paid; and on the 11th day of April, 1849, these lands were sold for such unpaid taxes, to La Eayette county ; and on the 21st day of December, 1852, said lands remaining unredeemed, the clerk of the board of supervisors of La Fayette county made deeds of said lands to said county, in pursuance of the
On the 1st day of January, 1861, defendant Stowers conveyed to Mather the lands now claimed by the latter, by a deed containing full covenants, which deed was duly recorded.
Upon the lands claimed by Mather, the taxes for 1857 were unpaid; and on the 14th day of September, 1858, such lands were sold for said taxes to La Fayette county, and remained . unredeemed until deeds were due. On the 16th day of September, 1861, the county assigned the certificates of this last sale to the defendant Mather, and on the same day he took a tax deed for said land, which deed was on the day of its date recorded, and is copied in the finding of the court. These lands were again sold for taxes in 1859, to the county of La Fayette; and on the 4th day of December, 1862, the certificates of sale were assigned to Mather, and on the same day tax deeds were made to him, and duly recorded, and are copied in the finding of the court. These lands were again sold for taxes in 1860, to the county, and afterwards the certificates were assigned to Mather, who, on the 23d of July, 1863, took a tax deed of a portion of the lands now claimed by him, which deed was on the same day recorded, and is copied in the finding of the court In 1861, 2 and 3, Mather bought the lands he claims, at tax sale.
On the 12th day of November, 1856, the defendant Stowers
On the 12th day of January, 1858, Lydia Stratton, by her deed of warranty, conveyed her interest in these lands to Lucretia Durkee, who afterwards, on the 18th of March, 1863, died intestate, leaving two children, William H. Durkee, and Anna G. Durkee, since married to the plaintiff Stephen A. Sturdevant, who are the plaintiffs in this action.
Upon these facts the plaintiffs claim a right to redeem an undivided fifth of the lands claimed by Mather, from the lien created by the said written instrument, and to redeem all said lands from the tax deeds under which Mather claims the fee,
Tbe instrument executed by Lydia Stratton and her bus-band to tbe defendant Stowers, and which may be properly denominated an equitable mortgage, is in these words:
“ Know all men by these presents, that we, Hull Stratton and Lydia Stratton bis wife, both of tbe village of Bingham-ton, Broome county and state of New York, for and in consideration of tbe sum of five hundred dollars to us in band paid by Uriah M. Stowers, of Binghamton, aforesaid, do hereby sell, transfer, assign, convey and set over unto said Uriah M. Stow-ers, his heirs and assigns, the amount of five hundred dollars of our right, title and interest, and the right, title and interest of each of us, in the lands, funds and property which were left by the late Matthias C. Comstock, of Galena, deceased, and we hereby authorize and empower said Stowers to collect and receive in our name, for his own sole and undivided use, from any and all persons, and particularly from any agent or agents having charge of the lands, property and funds which were left by the said Matthias C. Comstock, deceased, said amount of five hundred dollars, with interest from this date. And we authorize and direct that said Stowers shall receive said amount of five hundred dollars and interest from the first moneys and effects that shall be coming to us from the estate of said deceased. And the receipt of said Stowers, or of any individual to whom he shall assign this instrument, or of any person whom he shall or may appoint to receive such amount, to any person, for such sum of five hundred dollars and interest, shall be good and sufficient voucher to any and every person paying the same.
This instrument or conveyance shall be a lien on our and each of our interests in the lands, funds and property of the
The property and funds out of which this instrument designs that said Stowers shall receive and draw the above mentioned sum, is the estate of said Comstock, deceased, to which said Lydia Stratton (before marriage Lydia Comstock) became part owner on said Comstock’s death as heir-at-law.
It is therefore our intent that whenever said amount of five hundred dollars and interest shall be paid to said Stowers, in pursuance of this instrument, such amount shall be charged as paid on account of said Lydia’s share in said estate, or said Hull Stratton’s interest in the same as her husband.
In witness whereof, the said parties have hereunto set their hands and seals, this 7th day of July, A. D. 1846, at Bingham-ton aforesaid.
Hull StbattoN, [Seal.]
Lydia StbattoN, [Seal.]
Signed, sealed and delivered in presence of-”
Upon these facts, the principal, I may say the only, question argued here has been, whether the relations of Stowers were such as to preclude his acquiring and holding title by tax deed as against Mr. and Mrs. Stratton, the mortgagors, and those claiming under them; it being contended for the plaintiffs that his position and duties as mortgagee were inconsistent with the character of a purchaser, and that he could not, as against them, become a purchaser on his own account. After much time spent in the investigation of this question, I have finally concluded that it is not presented in this case. It appears that the deed to the county óf La Eayette under which Stowers claimed title, was sealed with the seal of the county, instead of the private seal of the clerk of the board of supervisors who executed it. We held in the case of Eaton v. North, just decided, that prior to the passage of the act of 1854 (chap. 66, Laws of 1854, sec. 4,) the seal of the officer executing the deed was required. It follows that the county acquired no title, and
Upon the question argued, whether the mere relation of mortgagee will prevent the person so related from acquiring title to the mortgaged premises by purchase at a tax sale, I may with propriety refer to Williams v. Townsend, in the Court of Appeals, 31 N. Y., 415, as the only case to be found, so far as my researches have extended, in which the question was directly presented and decided. It was the unanimous opinion of the judges in that case, upon facts which made much more strongly against the right of the mortgagee than any here presented, that no such relation of trust or confidence existed between the mortgagor and mortgagee as to preclude the latter
I think the judgment of the court below dismissing the complaint as to the defendant Mather, should be affirmed.
By the Court. — The judgment is affirmed.