Heller v. City of Milwaukee

Cassoday, C. J. This is an appeal from an order overruling the demurrer to the complaint, alleging, in effect, that the defendant sold certain real estate described, February 2, 1892, in the city of Milwaukee, to the plaintiff, for the alleged nonpayment of city taxes, assessments, and charges on two certain lots described, and thereupon the defendant issued to him the usual certificate or contract reciting such sale to the plaintiff for the sum named; that the certificate bears interest at the rate of twenty-five per cent, per annum; that, if the land so sold should not be redeemed according to law, the owner of the certificate would be entitled to a conveyance of so much of said land as should remain unredeemed that the defendant had not taken such proceedings and steps as authorized and empowered it to sell such lands at the date-named; that, accordingly, one Liebermann, who was the-owner and in possession of said lots, brought suit against the defendant and 'this plaintiff to have such sale and sale certificate declared to be null and void, and such proceedings were had and taken in that action that said sale and said ■ certificate were adjudged and declared absolutely null and void, and of no value whatever, for the reason that the city officials and the city neglected to take proper steps to make the same valid (Liebermann v. Milwaukee, 89 Wis. 336); that the plaintiff paid the defendant the sum of $570.16 upon said pretended sale, as stated, and had received no consideration 137 therefor, except said void tax-sale certificate; that he is now still the owner and in possession of said certificate; that no part thereof had been redeemed; that the time for redeeming the same and taking the deed had long since passed; that he hereby and herewith brings said certificate into court, and offers to deliver the same for cancellation; that the defendant had refused, and still does refuse, to repay the same to the plaintiff, to his damage of $1,000; wherefore he demands judgment for $570.16, together with interest thereon from February 2, 1892, with costs. The plaintiff contends that, the sale and certificate upon which he paid the money mentioned having been adjudged void, he is entitled to have the money so paid by him refunded, with interest, by virtue of the provisions of sec. 1184, R. S. But that section relates only to lands sold for the nonpayment of general taxes, and has no reference to the sale of lands for nonpayment of assessments for local improvements. Such contention is not aided by the statute which declares that “ all the laws contained in these revised statutes shall apply to and be in force in each and every city and village in the state so far as the same are applicable, and not inconsistent with the. charter of any such city or village; but when the provisions of any such charters are at variance with the provisions of these revised statutes, the provisions of such charters shall prevail, unless a different intention be plainly manifested.” R. S. sec. 4986. Nor is it aided by the statute providing for the reassessment for money refunded on illegal tax deeds. S. & B. Ann. Stats, sec. 1186. The charter of Milwaukee provides that “ any person entering into any contract with the city, and who agrees to be paid from special assessments, shall have no claim upon the city in any event, except from the collection of the special assessments made for the work contracted for; and no work proper to be paid for by special assessments shall bo let, except to a contractor who shall so agree.” Laws of 1874, 138 ch. 184, subch. V, sec. 21. Under that charter, this court has . held that “ where a lot is sold by the city treasurer of Milwaukee for the amount of certificates of the board of public works, and is bid in by the city, the certificate of such sale issued to the city will be held by it in trust for the several owners of the certificates of the board of public works.” Hoyt v. Fass, 64 Wis. 273. So, “ where work of the kind above described was ordered and contracted to be done at the expense of adjoining lots, without taking the necessary steps to charge- the lots, held, that the contractor cannot recover from the city, under a charter which declares that{in no event, when -work is ordered to be done at the expense of any lot, shall the city be held responsible on account thereof.’ ” Hall v. Chippewa Falls, 47 Wis. 267. To the same effect, Owens v. Milwaukee, 47 Wis. 470, 471. The authorities cited rule this case. We must hold that the complaint states no cause of action against the city. By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.