Roe v. Lincoln County

OetoN, J. The defendants demurred to the complaint on the grounds: (1) For want of jurisdiction of the subject matter; (2) that the plaintiffs are improperly joined; (3) that several causes of action are improperly joined; and (4) that the complaint does not state a cause of action; and the demurrer was sustained. upon the third ground alone. The learned counsel of the respondents, in this court, relies upon all the four grounds of demurrer stated therein, as he has a right to do. The second and third grounds of demurrer rest upon the same general allegation of the ownership of the lands, a cloud upon the title of which is threatened by illegal and fraudulent tax proceedings, and the contention is that the complaint alleges the land to be owned by the plaintiffs in severalty. [70] Tbe allegation of ownership is that “ the plaintiffs are, and for several years past have been, the owners,” etc. If there is a mere ambiguity or uncertainty in this allegation, and it may mean either that the lands are owned in common or in severalty, then the proper practice is to move to have the complaint made more definite and certain in this respect, and a demurrer will not lie. “ When the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.” Sec. 2683, R. S.; Markwell v. Supervisors, 10 Wis., 73; Clark v. Langworthy, 12 Wis., 441; Kuehn v. Wilson, 13 Wis., 104; Morse v. Gilman, 16 Wis., 504. But however inartificially the facts may be presented by the complaint, or however defective, uncertain, or redundant may be the mode of their statement, if a good cause of action can be gathered from it by a liberal interpretation, a demurrer to it will not be sustained. Flanders v. McVickar, 7 Wis., 372; Morse v. Gilman, supra; Williams v. Sexton, 19 Wis., 42. We think the most that can be claimed, in respect to this allegation of the complaint, must be subject to these two principles, for most certainly it cannot be reasonably claimed that this averment means that the lands are owned in sever-alty, and in no other manner. But why is not this form of allegation by several plaintiffs to express an ownership of all the lands in common by them strictly correct, and how could it more clearly express such joint owmership? If the plaintiffs together own all of the lands, then they own together each tract or parcel thereof. If the plaintiffs own any tract or parcel of the lands in severalty — that is, if one of them own one tract or parcel, and the other another tract or parcel,— then certainly they do not own both tracts or parcels together, or the whole body of the lands together. So, if the plaintiffs — both of them — own all of the lands, as is alleged, they cannot own any tract or parcel thereof in severalty. [71] But bow otherwise could or should their joint ownership be expressed? Must it be by stating that they own as tenants in common, or as joint tenants in partnership or copar-cenary? Such allegation would be a mere legal conclusion, and would not help out an imperfect averment of joint ownership in the first place. ¥e cannot readily apprehend how this averment could have been made to more clearly express the joint ownership of all the lands. This objection to the pleading is not even technical, much less substantial. The general jurisdiction of a court of equity to prevent or remove a cloud upon the title of real estate, threatened or existing, by reason of void assessment on taxation, has been too long established by the numerous — far too numerous — decisions of this court, to be again raised in any case. If any question can ever be considered settled beyond dispute, this is one. After the following language of Mr. Justice Paihe twenty years ago, in Mitchell v. Milwaukee, 18 Wis., 92, it was well hoped the question would remain at rest. He said: “ But the doctrine has long been settled in this state that a court of equity will interfere to prevent a cloud on the plaintiff’s title when his lands are threatened to be sold upon a void tax or assessment.” The other and the general ground of demurrer, that the facts stated do not constitute a cause of action, because the sale of the lands has not taken place, and is not even advertised and is only threatened, is disposed of by the same line of decisions. It is for the threatened mischief that the suit is brought, to prevent rather than to remove the cloud upon the title. If courts of equity have jurisdiction in any class of cases of this general character, it would seem to be more appropriate to prevent than to remove such a lien, cloud, or incumbrance on the title to lands. . It would be a violation of the old adage, as well as the principle of equity requiring diligence of those seeking its aid, to wait and lie by until the threatened mischief has been accomplished, and the rights of third persons have intervened, be [72] fore asking its protection. The language of Mr. Justice Paine in the above case, “ when his lands are threatened to Toe sold” which was applicable to the facts of that case, is especially pertinent to the facts of this case. Here the tax has been assessed and levied, and placed upon the tax roll, and returned unpaid or delinquent, and the sale of the lands, upon which it is an apparent lien, is threatened. In the case of Judd v. Town of Fox Lake, 28 Wis., 583, the tax had been only ordered to be raised by a resolution of the town meeting, and the suit was brought to restrain the town from carrying the resolution into effect. It was held not to lie at such a stage of the proceedings, as ^such an interposition of a restraining order might prevent the very first step towards taxation from being taken by the taxing officers; and the case of Peck v. School District, 21 Wis., 516, was distinguished, because in that case an illegal contract had been entered into which imposed an apparent burden upon the district, which must be raised by taxation, and a tax had been actually levied for that purpose, and its collection threatened by a sale of personal property. Chief Justice Dixon said in that case: “We are of opinion that the collection of the taxes in such a case may be stayed by injunction, as a proper subsidiary ground of relief; ” and while refusing to grant relief in the case of the void resolution, standing alone, Chief Justice Dixon said in the opinion: “ Should the officers of the town attempt to carry the resolution into effect, and assess a tax wholly unauthorized and illegal, . . . and if the same be extended against the real estate, they will also have their suit in equity to remove the supposed lien and cloud upon the title.” In this connection the statute may well be cited to show the ground of jurisdiction in such a case. By sec. 1088, R. S., “all taxes levied upon any tract of land, and all costs, charges and interest thereon, shall be a lien thereon until paid.” The tax itself is therefore an apparent lien and [73] a cloud upon the title as soon as levied, ■which, may be removed by a court of equity. Much more may a court of equity intervene and remove such cloud, and prevent another and a denser cloud upon the title by the sale of the lands which is threatened. To remove one and prevent the other, when threatened, would seem to be the clear and unquestioned jurisdiction of a court of equity. In this view the learned circuit judge fully concurred, by overruling this as a ground of the demurrer, together with that resting upon the want of jurisdiction, and by sustaining the demurrer on the ground of an improper joinder of causes of action alone. But we have been compelled to consider all of the grounds of demurrer, because they were all urged in this court for the purpose of sustaining the demurrer and the order of the circuit court. By the Court.-— The order of the circuit court is reversed, and the cause remanded for further proceedings according to law and the rules of equity