Edwards v. Upham

Maeshall, J. The first question presented is, Were the-inquiry made by plaintiff of the county treasurer of Lincoln county, respecting the back taxes for the year on which the first tax deed was based, and the reply of such treasurer thereto, effectual to discharge such land from the lien of such taxes? The law is well settled that if a landowner in. good faith applies to the proper officer for the purpose of paying the taxes thereon, and is prevented from making payment by the mistake, wrong, or fault of such officer, such attempt to pay is equivalent to payment and discharges458 the land from the lien of such tases, and he may thereafter prosecute an action against the grantee under a tax deed based on such tax, the same as if the tax was paid in fact, even after the expiration of the three years constituting the limitation under sec. 1188, S. & B. Ann. Stats. Gould v. Sullivan, 84 Wis. 659; Bray & Choate Land Co. v. Newman, 92 Wis. 271. This subject is very fully discussed in the two cases cited, and it is needless to go over the matter again. Suffice it to say that in neither of such cases, nor in ■any case therein cited or to which our attention has been called in the brief of counsel, nor in any case that we have been able to find after a very careful study of the matter, has any court gone so far as to hold that an offer to pay the tax on land to an officer not authorized to receive it discharges the land from the lien of such tax. The rule is ■confined to cases where the landowner is prevented from paying the tax by the neglect, wrong, or mistake of the offi■cer charged with the duty of collecting or receiving the tax. In Van Benthuysen v. Sawyer, 36 N. Y. 150, the rule here invoked is stated, in effect, thus: If redemption of land sold for taxes is prevented by the fault or misconduct of the officer through or to whom redemption is to be made, the title will not pass by any subsequent deed based on such tax. The rule being based on the principle that an offer of perform.ance made to the proper officer, defeated by the fault, negligence, or wrong of such officer, is equivalent to performance, ■obviously it cannot have any application where the officer to whom the tender is made has no power to receive it. It is contended that notwithstanding the statute of limitations had run in favor of defendant’s deed, and that he was therefore the absolute owner of the land under such •deed before the application, was made to refund the money, the act of the county board and the receipt of the money by ■defendant effectually canceled the deed. The power of the ■county board, under sec. 1184, R. S., is confined to refunu459 ing money paid for certificates that are invalid. As the statute of limitations had run in favor of the certificate in question, thereby curing the irregularities and defects, the •county board had no jurisdiction, under sec. 1184, R. S., to refund the money; hence their action could in no event affect defendant, unless he did something by reason of which he became estopped from afterwards asserting claim of title under the deed. Obviously, the receipt of the money and the payment back to the county on discovering the mistake could not operate as an estoppel, unless by such acts plaintiff was induced to do or not to do something, or to incur some expense, relying thereon, by which he would be prejudiced if defendant thereafter was allowed to successfully assert his tax title. As is very properly said by counsel for respondent in their brief, the facts do not include the essential elements of an estoppel. Plaintiff did not do anything, or incur any expense, relying upon the acts of defendant or his agent; for even this action to assert the invalidity of the tax deed was not commenced till long after the defendant had discovered the mistake and had refunded the money. There can be no estoppel in pans created in favor of a person by the acts of another when no acts are done or expense incurred by such person in consequence of the acts or declarations of such other. Mabie v. Matteson, 17 Wis. 1. It follows that the title of the defendant to the land in question was absolute under the first tax deed, and he was entitled to judgment as rendered in the court below. By the Court.— The judgment of the circuit court is affirmed.