Jackson v. Town of Jacksonport

Cassoday, J. It is urged by the learned counsel for the defendant that the evidence conclusively shows that the plaintiff, in purchasing the tax certificates, was acting for his father, who was the owner of the land, or in fraud of his rights^ so as to make him a trustee, holding the certificates in trust for the land-owner. It is a sufficient answer to say that the plaintiff positively denies that such were the facts, and positively swears that he purchased the tax certificates for himself, and with his own money. This was sufficient to take the case to the jury, and hence it was error to direct a verdict for the defendant upon that ground. Sabotta v. Ins. Co., 54 Wis., 687. Such direction should not be given unless the evidence for the plaintiff, considering it as undisputed, and giving to it the most favorable construction in his favor it will legitimately bear, including all- reasonable inferences from it, is insufficient to justify a verdict in his favor. In the alleged transfer of these certificates from the defendant to the plaintiff there was no assignment as required by the statute. There being no such assignment, the plaintiff got no legal title to the certificates which would authorize him to get a valid tax deed. This has been recently determined by this court after very careful consideration. Smith v. Todd, 55 Wis., 459. But even had there been such assignment, yet under the circumstances of the case it [313] ■would have been valueless to the plaintiff for another reason. It is settled in this state that towns are not authorized to purchase and hold tax certificates. Eaton v. Manitowoc, 44 Wis., 489. This being so, the defendant here took no title, and could not take any title, to the certificates in question. Having acquired no title, and being incapable of acquiring any, the defendant had no power to give any title to the plaintiff. The defendant, being precluded by the law from taking title to these certificates, was incapable of selling or contracting to sell the same, even in the manner prescribed by statute, much less in a manner not prescribed. It follows that the plaintiff got nothing for his money which could be of any value to him, and the defendant parted with nothing to which it had any title, or any power or capacity to own. The defendant has taken and converted to its own use the plaintiff’s money, and the latter has received nothing of any value to him in return. Such being the facts, the plaintiff is entitled to recover back the money paid, unless there is some principle of equity which the defendant may invoke in justification of its retention. Fay v. Lovejoy, 20 Wis., 403; Wells v. Am. Exp. Co., 49 Wis., 224. We are unable to discover any such equity in favor of the defendant. The case is clearly distinguishable from that class of cases where an equitable estoppel precludes a party from showing a want of title. The view we have taken of the case relieves us from considering the question of limitation, so ably discussed by counsel, as it is not necessarily in the case. Uor is it necessary to go into an analysis of the different adjudications for the purpose of reconciling and harmonizing the language employed in different opinions. The subject of taxation is not only important, but difficult. The interests involved affect not only the parties, but the public. The rights to be guarded, and the evils and mischiefs to be prevented, are numerous. The statutes are necessarily complicated, and [314] become more so by being frequently changed. This is increased by traffic and speculation not contemplated by the. statutes. Under these circumstances the duty of the court is always weighty, but seldom plain. The most that can be hoped for is to keep the system adopted by the state as harmonious as possible, and at the same time preserve the rights of parties and guard the interests of the public so far as the established law will permit. For the reasons given, the direction of a verdict for the defendant was, in our opinion, error. By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.