Zwietusch v. Watkins

Cassoday, J. The plaintiff claimed title and went into the possession of the lot in question under a tax deed issued by the city. The defendant, as 'the original owner, brought ejectment against him, and upon the trial of that action the tax deed was adjudged void, for reasons going to the groundwork of the tax or assessment upon which it was issued. The judgment entered thereon was affirmed by this court for the same reason. Watkins vs Zwietusch, 47 Wis. 513. That judgment was executed in January, 1880. Within one year thereafter the plaintiff commenced this action to recover for improvements nlade and taxes paid, as provided by statute. Subd. 3, sec. 3097, R. S.; Phoenix L. M. & S. Ins. Co. v. Sydnor, 39 Wis. 613. This recovery is sought under sec. 3096, R. S. But a large portion of the improvements were made prior to the time when the present revision of the statutes went into effect. This being so, such portion must be recovered, if at all, under the statutes previously in force; that is to say, under secs. 30, 31, 32, ch. 141, R. S. 1858. Under those sections this court held that the tax-title claimant could recover for his improvements only where the tax described in his deed had been “ law — 619 — fully assessed.” Oberich v. Gilman, 31 Wis. 495. To entitle the tax-title claimant to recover for such improvements under those sections, it was not only necessary that the improvements should be made “ in good faith,” but also that the assessment or tax upon which the deed was issued was .“lawfully assessed thereon.” The difference as to the requisites to . such recovery by such tax-title claimant, and by one “ holding adversely by color, or title asserted in good faith, founded on descent or any written instrument,” under sec. 33 of that chapter, was plainly pointed out by Mr. Justice LyoN, in the case last cited, in giving the origin and purpose of the respective sections. It logically follows, from that decision, that there can be no recovery here for such permanent improvements made prior to the present Eevised Statutes. Manifestly, the enhanced value of the lot by reason of such prior filling was included in the answers to the seventeenth and nineteenth questions submitted to the jury, and hence went into and formed a part of the judgment appealed from. This was clearly error. Can the plaintiff recover for such portions of the improvements as were made after November 1, 18Y8? The words “ lawfully assessed thereon,” as used in the old statutes, seem to have been entirely omitted in the revision, and the general language used in sec. 33, supra, was enlarged and adopted so as to include improvements made by tax-title claimants. Sec. 3096, E. S. That section provides, in effect, that in every case where a recovery is had of any land on which the party in possession, or those under whom he claims, while holding adversely by color of title asserted in good faith, founded on descent or any written instrument, has made permanent and valuable improvements, or paid ta-xes assessed, such party, for himself and for the benefit of those under whom he claims, is entitled to have from the plaintiff, his heirs or assigns, if he insist u-pon his recovery, the value of such improvements at the time the verdict or decision against him is given, and the amount paid for taxes, with — 620 — interest from the date of payment, and for the payment thereof a lien upon the real estate so recovered. “ By color of title” is included a tax deed void upon its face. San-born & Berryman’s notes to this section. We think it also includes a tax deed void for reasons going to the ground work of the tax or assessment upon which it is issued. True, there must be a “holding adversely by color of title asserted in good faith; ” but it is only by color of title which must thus be asserted. As indicated, it has often been held by this court that good faith may accompany such assertion, notwithstanding the infirmity of .the tax deed giving such color of title may be apparent upon its face. Lindsay v. Fay, 25 Wis. 460; Sprecher v. Wakeley, 11 Wis. 432; Edgerton v. Bird, 6 Wis. 538. In a much stronger sense is it true when' the defect is anterior to the tax deed and not apparent upon its face. It is claimed here that the plaintiff knew enough about the assessment upon which his tax deed was issued to put him upon inquiry. But there was no defect brought home to him more palpably than would have been done by a tax deed void on its face; and yet, as we have seen, that'would . not have prevented the assertion of title being made in good faith under such deed. Nor do we think the commencement of the ejectment suit by the .defendant against the plaintiff necessarily converted the good faith into bad faith. It was at most notice to the plaintiff that the defendant also claimed title to the lot. In- such complicated matters of law able lawyers frequently differ in good faith, even when the facts are not disputed. This being so, it would hardly do to hold that an ordinary layman should be conclusively presumed guilty of bad faith from mere construction, implication, or inference. We conclude that the defendant was liable to the plaintiff for the taxes and improvements for filling put upon the lot, as found in the sixth, twelfth, thirteenth, and eighteenth findings. We are also inclined to think that the plaintiff is .entitled — 621 — to recover for the value of the building, as found in the eighth finding, with interest thereon from the time of the verdict in the ejectment suit. In coming to this conclusion we do not overlook the facts that it was originally put on the lot by a tenant of the defendant, and occupied and mortgaged by such tenant as his own personal property; nor that it was bought from such tenant by this plaintiff as personal property; nor that the jury found that it did not permanently improve the lot. The facts in relation to it are not in dispute. The plaintiff caused filling to be put beneath it, and the' ground to be leveled, a floor to be put in, and the sides to be boarded up. Thus a basement or shop-room was constructed and used, and it was in that condition when the verdict in the ejectment suit was rendered, and also in the same condition afterwards, when the plaintiff was ousted from the possession, not only of the lot but of the building, and both taken and retained by the defendant. Had the building been so attached to the lot as to have become an indisputable fixture, prior to the time when the Revised Statutes went into effect, we should have been compelled to hold that the plaintiff could not recover for its value, upon the principles above indicated. It appears, however, that it was not so attached as not to be removable by the plaintiff, while claiming in such good faith under such color of title, without making him a trespasser. It is enough to know that by the verdict and judgment, and the execution thereof, the defendant in this action, in the language of sec. 3096, R. S., insisted “ upon his recovery,” not only of ■the lot, but of this building standing upon it. Having thus forcibly insisted upon taking the building, as well as the lot, from the plaintiff, the defendant cannot now reasonably nor equitably escape liability therefor on the ground that it never became such fixture, but continued to be personal property. Under that section it is because the plaintiff in such ejectment suit “ insists upon his recovery ” therein that — 622 — the defendant in such suit is entitled to compensation for the improvements so recovered. Under that statute the plaintiff here was not a trespasser, but one “holding'adversely by color of title asserted in good faith.” But under that statute, and after the defendant insisted upon retaining the building by virtue of his recovery, it was most certainly, as to him, a permanent and valuable improvement and fixture. Huebschmann v. McHenry, 29 Wis. 655; Lipsky v. Borgmann, 52 Wis. 256; Kimball v. Adams, 52 Wis. 554; Hoile v. Bailey, 58 Wis. 453. And especially should this be so in view of the finding giving to the defendant rent for the use of the building from the rendition of the verdict. In a proceeding equitable in its nature, like this, there is much propriety in subjecting the parties to equitable considerations. This we have felt called upon to do. From the views expressed it is evident that the judgment includes a certain amount which ought not to have been included, and fails to include a certain other amount which ought to have been included, and hence is erroneous as to each party. There was a manifest error in the computation by the jury in answering the nineteenth question. That error was adopted by the court. Of course there must be a reversal, and as the record stands it is difficult, if not impossible, to tell who is most responsible for the errors which have intervened. We would, perhaps, be justified in ordering a new trial, especially as both parties have appealed. But in view of th e protracted character of the litigation, the nature of the questions involved and evidence adduced, and the numerous findings of the jury, we are inclined to think we should be doing injustice to both parties if we failed to terminate this litigation now. By the Gourt.— ThQ judgment of the circuit court is reversed on both appeals, and the cause is remanded with direction to compute the aggregate sum due to the plaintiff for principal and proper interest upon the respective amounts — 623 — found in favor of the plaintiff, as above indicated, and then deduct from such sura the aggregate amount of the respective sums, with the proper interest found in answer to the fifteenth and sixteenth questions, and for the difference, as damages, the usual judgment in such cases is hereby ordered in favor of the plaintiff and against the defendant.