Perrigo v. City of Milwaukee

Cassoday, C. J. By the terms of the agreement the. city, upon making the first payment, was entitled to the possession of the premises, with the right to alter, change, and improve the same, to be used as a public park, pursuant to ch. 488, Laws of 1889, and ch, 179, Laws of 1891; but it had no right to a conveyance of the legal title thereof until it had, within the ten years mentioned, paid the balance of the purchase price,— $46,487.94, — with the interest thereon payable annually, and all taxes assessed on the premises after January 1,1891. Eor any failure of the city to make any payment of purchase money or annual interest or taxes at the times and in the manner specified, the Perrigos, their heirs, executors, administrators, and assigns, were thereby expressly authorized, by action or proceedings at law or in equity, to bar and foreclose all right and equity of redemption of the city in the premises. But each of the legislative enactments mentioned expressly provides that such purchase, or agreement to purchase, should be “ without creating any corporate liabilities therefor; ” and the agreement expressly provides that the same should “ not create any corporate liability against ” the city “ in any manner or form,” and that the Perrigos would “ not claim any corporate liability against ” the city “ by reason thereof.” It is manifest that the legal title to the premises remained in the Perrigos, subject to the possession in the city, with the option in the city to acquire the legal title by paying the full amount of the purchase money, interest, and taxes, as agreed. The right of the town of "Wauwatosa to tax the premises, as the property of the Perrigos, is expressly recognized in the agreement; and the city therein expressly [241] agrees to pay the same as a part of the purchase price. Thus, the premises are taxed by the town as real property, the legal title to which is iu the Perrigos. The questiou recurs whether the Perrigos, as residents of 'the city, had such property rights in the optional agreement 'held by the city as to make the same taxable as personal property by the city, within the meaning of the statutes. B. S. secs. 1034-1036. These statutes provide that “the term ‘personal property,’ as used in this title, shall be construed to mean and include . . . all debts due from ■solvent debtors, whether on account, note, contract, bond, mortgage or other security, or whether such debts are due or to become due; and all . . . moneys and effects, of any nature or description, having any real or marketable value, and not included in the term real property, as above defined.” Does this optional agreement held by the city create a debt against the city and in favor of the Perrigos? Certainly not, since, as indicated, it expressly provides that the city ■shall not thereby be made liable in any manner or form. Of course, if the contract created an indebtedness against the ■city capable of being enforced, its situs would be the domicile of the owner. State ex rel. Dwinnell v. Gaylord, 73 Wis. 325. “ In the case of such intangible species of property, the thing that is valuable is the right of the creditor to receive property or money, and to enforce such right by action in court.” Id. But the Perrigos are not “ creditors ” having a right to an indebtedness against the city which they can enforce by action or otherwise. The most they can do is to reclaim their land, and bar the city from it. Bor do we think the optional agreement is an “ effect ” belonging to the Perrigos, “ having any real or marketable value,” within the meaning of the statute quoted. The further payment by the city of any portion of the purchase price or interest or taxes is entirely optional with the city. It is, so far as the Perrigos are concerned, a mere possibility or expectancy, [242] attached to the real estate, and from its nature is incapable of being separated therefrom and sold as personal property? but would necessarily pass by a conveyance of the land. Needles v. Needles, 7 Ohio St. 432, 70 Am. Dec. 85; Purcell's Adm’r v. Mather, 35 Ala. 570, 76 Am. Dec. 307; Young v. Young, 89 Va. 675, 23 L. R. A. 642, and notes; Kansas Mut. L. Asso. v. Hill, 51 Kan. 636. Similar agreements have been held not taxable against the vendors in other states. Brown v. Thomas, 37 Kan. 282; Kelly v. Minneapolis, 65 N. W. Rep. 115. The defendant expressly waives any objection on the ground that the plaintiff has an adequate remedy at law. Peck v. School Dist. 21 Wis. 516. It follows from what has been said that the demurrer was properly overruled, and the injunctional order properly made. By the Gourt.— Both orders of the circuit court are affirmed.