Spear v. Door County

Taylor, J. The learned counsel for the appellant claim that the court should not have made the order in the case, (1) for the reason that the plaintiff did not show himself entitled to maintain the action, not being the owner of the [304] lands when the action was commenced; (2) because the court should have dismissed the complaint for laches in not bringing his action at an earlier day; and (3) on the ground that the finding of fact upon which the order is based is not sustained by the evidence. In Pier v. Fond du Lac Co. 53 Wis. 421, this court expressly held that a grantor who had conveyed real estate with covenants of warranty, could, after making such conveyance, maintain an action to set aside an illegal tax levied upon such real estate while he was the owner thereof. "We have no reason for doubting the coi’rectness of that decision, and refer to the opinion in that case for the reasons in support of it. It is true, some of the lands in the case at bar were not conveyed by warranty deed, but those which were not were mortgaged, and the title of the plaintiff was sold upon a foreclosure of such mortgage to the present owners. In the mortgage the plaintiff covenanted to pay all taxes subsequently levied on said mortgaged premises. This mortgage was executed November 15, 1815, and must have been before the taxes for the year 1875 had been extended on the tax roll for that year. We think this was a covenant to pay all taxes which thereafter became a specific lien upon said lands by being extended upon the tax roll of the town in which they were situate. The rule fixed by statute as to who shall pay the taxes for the current year, as between grantor and grantee, when no agreement is made in respect to the same, goes upon the theory that the taxes are not a specific lien upon real estate until the tax roll is completed and the taxes extended on such roll. See sec. 1153, R. S. The grantor is not liable, on his covenant against incumbrances, for the taxes of the current year unless they have been extended on the tax roll at the date of his conveyance. At the date of the plaintiff’s mortgage had he conveyed the lands by warranty deed, he would not have been liable for the payment of the taxes for the current [305] year, unless upon special agreement. We think, therefore, the covenant in the mortgage to pay all taxes subsequently levied on the lands mortgaged, covered the taxes thereafter charged against them upon the tax roll of 1875. The plaintiff brings himself within the rule laid down in Pier v. Fond du Lac Co,, without any reliance upon the parol contract admitted to have been made with the purchasers at the foreclosure sale. The fact that the plaintiff had commenced a former action to restrain the collection of the same taxes sought to be avoided by this action, and that such action had been dismissed for want of prosecution, is not in itself a bar to this action. The reason why the action was not prosecuted is not disclosed, and we are unable to say that there may not have been good reasons for its long pendency and final dismissal, without fault on the part of the plaintiff. Besides that, the position of the plaintiff in regard to those taxes has been changed by the reassessment and sale of his lands upon such reassessment, and the plaintiff brought his suit promptly after the lands were sold for the l-eassessed tax. As to the other point made by the counsel for the appellant, that the finding of the court “ that the improved farms in said town were wilfully assessed at less than their actual value, with intent to relieve the owners from the payment of their just proportion of the taxes,” is not sustained by the evidence in the case, we cannot agree with the learned counsel. We think the finding is clearly sustained by the evidence. This finding is a sufficient ground for staying the proceedings and directing a reassessment, for the purpose of determining how much of the taxes the plaintiff ought to pay to entitle him to relief in the action. We must adhere to the decision of this court in Webster-Glover L. & M. Co. v. St. Crow Co. 63 Wis. 647, that, upon an appeal from this order, we cannot pass upon the correctness of the decision of the circuit court in holding that the [306] school taxes and road taxes are void, and that the plaintiff should not be required to pay any part of them in order to entitle himself to relief. It is further insisted by the learned counsel for the appellant that as sec. 1087, R. S., made it the duty of the town board to place the taxes of 1875, the collection of which had' been restrained by injunction, and which injunction had been dissolved in 1882, upon the tax roll of 1882, the validity of such taxes so placed upon the tax roll cannot thereafter be questioned for any cause. ¥e are of the opinion that notwithstanding this section directs the town officers to place the taxes, the collection of which has been enjoined, upon the next tax roll, such direction does not validate such taxes, so that the owner of the real estate may not attack their validity for causes going to the groundwork of the original assessment, and which show that the taxes so placed upon the tax roll are unequal and unjust, in any case where such injunction has been dissolved for want of prosecution, and not upon the merits. By the Gourt.— The order appealed from is affirmed, without prejudice to the appellant’s right to contest the correctness of the rulings of the circuit court as to the school and road taxes, upon the entry of the final judgment in the action.