Karr v. Washburn

Lyon, ,J. The alleged redemption, which the plaintiffs offered tó prove, was attempted to be made under ch. 89, Laws of 1868, which is incorporated in R. S., 374, sec. 1166 [307] The statute is as follows: “ The lands of minors, or any interest they may have in lands sold for tases, may be redeemed at any time before such minors come of age, and during one year thereafter.” The question to be determined is, Did the plaintiffs have any interest in the lots in controversy when they redeemed the same? Their interest (if they had any) results from the facts which they proposed to prove, that Bartlett, the former owner, recognized their equitable right to the lots, and that he conveyed them to Harris upon the parol trust that he would convey the same to the plaintiffs, who were thus recognized by Bartlett as the equitable owners. The eldest plaintiff became of age December 9, 1878. Hence, at the time Harris conveyed to the plaintiffs, May 9, 1879, the time of redemption limited by the above statute had not expired. Harris was under the strongest moral obligation to convey the lots to the plaintiffs, although he could not have been compelled to do so by judicial process. To the extent of that moral obligation plaintiffs had an interest in the lots. By Harris’s conveyance to them, that interest became fully vested, and from thenceforth they became, but for the tax deed, the absolute owners of the fee. Before conveyance, their interest in the lots was their moral right to become the absolute owners of the fee. Hence, the conveyance only gave them that to which they were honestly entitled, long before the tax was levied which is the basis of the tax deed under which defendants claim. The statute provides (R. S., 654, sec. 2302) that no trust concerning lands shall be created, assigned, granted, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, assigning, granting, surrendering, or declaring the same. But this does not prevent the execution by the trustee of a parol trust. Indeed, in Rasdall's Adm'r v. Rasdall, 9 Wis., 380, this court, after holding a parol trust concerning [308] lands void, appealed to the conscience of the trustee to execute the trust as an act of justice to the beneficiaries. "Whatever may be the language of the courts, perhaps of this court, in some of the cases, such a trust is not an absolute nullity. It is simply void at the election of the trustee. He may execute it or not, as he chooses, and the courts will not interfere to compel him to execute it or to restrain him from so doing.. If he refuses to execute it, from thenceforth the trust, which rests only upon a moral obligation, is a nullity. If, however, he elects to perform his moral duty in the premises, and does execute his trust, the courts will protect him in doing so, and will protect the beneficiaries as far as possible in the enjoyment of the fruits of the executed trust. The law is tender of moral obligations, even though not enforceable by judicial process. This is manifest in many of the cases cited by counsel for the plaintiff, in which persons have been protected in the discharge of obligations void under the statute of frauds, and this even as against creditors. In Bank v. Bertschy, 52 Wis., 438, this court gave its sanction to the same doctrine. After citing and commenting upon several cases bearing upon the subject, Mr. Justice Tayloe says: “ These cases seem to establish the rule that a conveyance or security given for a debt, or in fulfilment of a contract which could have been recovered or enforced in an action were it not for some legal maxim or statutory provision which prevents such recovery by reason of the contract not being in the form prescribed by the statute,— or, in other words, not being evidenced in the manner prescribed by law,— is not a voluntary conveyance or security, and therefore fraudulent and void as to creditors, if the'evidence shows that there was a sufficient consideration for the debt or promise to support the same were it not for the statutory requirements.” This case is within that rule, for at the common law the trust here alleged would have been valid and enforceable. [309] The holder of a tax certificate or the grantee in a redeemable tax deed cannot be in any better position than a creditor in respect to the execution of a parol trust concerning the lands covered by such certificate or deed. While the same remains redeemable, the amount paid for the certificate or deed is a debt against the land secured by a first lien upon the land, and drawing interest at the rate of twenty-five per cent, per annum. The security covers all interests in the land, without regard to notice or registry laws, and is held by the purchaser subject to the right of redemption given by the statute. Surely, the law deals liberally with the purchaser, in that it secures repayment of his investment with such enormous interest thereon in case of redemption, and if not redeemed, gives him the paramount and absolute title to the land included in his certificate or deed. The tax-title claimant being thus liberally dealt with, it is but reasonable and just that the statutes giving the right of redemption should be liberally construed in favor of those who seek to exercise that right. A strict construction of the statute above quoted might restrict a minor’s right to redeem to a case where his interest in the lands is enforceable by judicial process. But a more liberal and a more reasonable and just construction would be to give the right to one whose interest rests upon a moral obligation alone, if that obligation be executed, and the title becomes vested in the minor before the period of redemption expires. We must hold, therefore, that if Bartlett, recognizing the fact that the plaintiffs were equitably entitled to the lots in controversy, conveyed the same to Harris upon the parol trust that Harris should convey to the plaintiffs, inasmuch as Harris executed the trust before the time of redemption expired, the plaintiff had an interest in the lots, within the meaning of the statute (sec. 1166) above quoted, from the time they were conveyed to Harris, and were entitled to redeem from the tax sale under which defendants claim. [310] Because the circuit court rejected the evidence offered to prove these facts, the judgment must be reversed. How the case would have stood had Harris failed to execute his trust until after the time limited for redemption had expired, is not determined. By the Ooiwi.— Judgment reversed and cause remanded for a new trial.