Pinkerton v. J. L. Gates Land Co.

Cassoday, C. J. The court found, and it is conceded by the defendant, that the plaintiff is the owner of all the lands in question, and is entitled to the possession thereof, unless he has been divested by one or more of the five tax deeds under which the defendant claims title. Of course, a tax deed in regular form is “presumptive evidence of the regularity of all the proceedings, from the valuation of the land by the assessor up to and including the execution of the deed.” Sec. 1176, Stats. 1898. Nevertheless, until the statute of limitation has run in favor of such deed, such presumption may be overcome by proof of defects which will invalidate the tax deed. The plaintiff contends that there are numerous defects, disclosed in the record, any one of which should have such an effect. Several of these questions are important, and should only be determined by this court after very careful consideration. The view we have taken of this case only requires that we should here determine two of. these questions; and they are, in effect, covered by the recent decision of this court in Chippewa River L. Co. v. J. L. Gates L. Co., ante, p. 345, 94 N. W. 37, 95 N. W. 954, as modified by the opinion filed on the motion for a re-argument in the case. — 522 — It is claimed on the part of the plaintiff that, at each of the tax sales under which the five tax deeds in question were respectively taken, the lands were sold for a sum considerably in excess of the unpaid “taxes, interest and charges thereon,” as prescribed by the statute. Sec. 1130, Stats. 1898. The tax certificates upon which such tax deeds were issued are all in the record. The evidence shows the several amounts of taxes returned by the town treasurer as delinquent on the lands therein described for each of the five years in question, and also the amounts for which such lands were sold. Prom such evidence it appears, in effect, and is undisputed, that each of such sales was for an amount equal to the aggregate amount of the delinquent return, with the interest allowable thereon to the day of sale, and twenty-five cents “fee for advertising” and twenty-five cents for the certificate of sale, and for an additional amount equal to five per cent, of the amount of the return. To illustrate: A certificate on the sale of May 21, 1895, is for $8.42, whereas the delinquent return is only $2.66 — making a difference of seventy-six cents; and that includes the two items of twenty-five cents each mentioned, and the interest on the return to the day of sale, and the five per cent, on the amount of the return, additional. The certificate on the sale of May 19, 1896, is for $3.57, whereas the delinquent return is only $2.80. So the certificate on the sale of May 18, 1897, is for $3.29, and the delinquent return only $2.54. The certificate on the sale of May 17, 1898, is for $3.66, and the delinquent return only $2.88. The certificate on the sale of May 16, 1899, is for $3.99, and the .delinquent return only $3.18. So far as the allowance of twenty-five cents for the certificate is concerned, that is determined in favor of the defendant in the Chippewa River Land Co. Case, supra. On the other band, it was there determined, upon facts quite — 523 — similar to the facts in the case at bar, that the twenty-five cents, “fee for advertising,” was improperly included. In that case, as in this, there were five publications of each notice of sale; but the last publication in each case was less than a week prior to the sale, and hence could not be regarded as a legal publication within the meaning of the statute. Sec. 1130, Stats. 1898. Here the fifth publication was in no instance more than five days prior to the sale. Rejecting the fifth publication, therefore, as “mere surplus-age,” and regarding the fourth publication as the last publication, as held in the Chippewa River Land Co. Case, and the question recurs whether the “fee for advertising” was included in the amount for which the lands were sold, contrary to the statute. Sec. 1132, Stats. 1898. That statute provides: “Every printer who shall publish such statement and notice shall, immediately after the last publication thereof, transmit to the treasurer of the proper county an affidavit of such publication made by some person to whom the fact of'publication shall be known; and no printer shall be paid for publishing any such statement and notice who shall fail so to transmit such affidavit within six days after the last publication thereof.” Here it appears, and is undisputed, that “such statement and notice,” and the affidavit of the publication thereof, were not transmitted to the treasurer of the county “within six days after the last publication thereof,” within the meaning of that section. As stated in the case cited, the words “last publication” must “be taken in their natural and ordinary sense, as referring to the last issue of the paper in which the statement and notice were legally pub-lisbed, and not the completed period of publication.” As there indicated, the purpose of the strict requirement of the statute quoted is undoubtedly to make it sure that the proof of proper publication shall be in the hands of the treasurer — 524 — before the sale takes place. The publication must be for four successive weeks prior to the day of sale prescribed in the statute. Sec. 1130, Stats. 1898. As stated by my Brother WiNsnow in the case cited: “The full period of twenty-eight days from the date of the first publication must expire before the day of sale, and that period may expire on the day before the sale, but generally expires less than six days preceding the day of sale. Thus, if the affidavit were not required to’ be transmitted until six days after the completed period of twenty-eight days, it would frequently fail to be in the hands of the treasurer before the sale, and the treasurer could not transmit it to the clerk, with the statement of the sale and the other papers, immediately after the sale, as he is required to do by sec. 1141.” For the reason stated, we must hold that the printer’s fee of twenty-five cents was improperly included' in the amount for which each sale was made. See Ward v. Walters, 63 Wis. 39, 44, 22 N. W. 844; Pittelkow v. Milwaukee, 94 Wis. 655, 69 N. W. 803. In addition to the unpaid taxes returned, with interest thereon to the day of sale, the printer’s fee of twenty-five cents, and the certificate fee of twenty-five cents, there was included in each sale an additional amount, equal to five per cent, of the amount of the delinquent return. No attempt is made to justify the inclusion of such additional amount. It was held by this court at an early day that, “where lands were sold at a tax sale for an illegal excess of five per cent, above the amount of taxes and charges for which they were liable to be sold, the sale was void." Kimball v. Ballard, 19 Wis. 601; Warner v. Outagamie Co. 19 Wis. 611; Pierce v. Schutt, 20 Wis. 423. Thus it appears that the tax sale of 1895, upon which the tax certificate of that year mentioned was issued, was for an illegal excess of thirty-eight cents. Each and all of the other tax sales were for a corresponding illegal excess. It follows that each of — 525 — the five tax deeds based upon, such sales, respectively, is void. 2. But it is contended on the part of the defendant that, notwithstanding the fact that such de'eds are all void, still the judgment should be reversed, because it fails to conform to the statute. Sec. 3087, Stats. 1898. There is no pretense that any of the lands claimed by the plaintiff “were not liable to taxation for the tax for which they were sold, or that such tax was paid prior to the sale, or the land was redeemed from such sale;” and hence the case _comes squarely within the provisions of that section, which declares : “The court shall order that the amount for which such land was sold, and the costs of executing and recording such tax deed, and the amount paid by the defendant for taxes assessed upon such premises subsequent to said sale, with interest on all such sums at the rate of fifteen per centum per annum from the time so paid until the date of the verdict, shall be set off against the damages awarded to the plaintiff by the verdict; and if there be any excess, that the plaintiff, as a condition of judgment, shall pay the same, with interest from the date of the verdict, within ninety days; and that, in default thereof, the defendant shall have judgment in the action.” On the part of the plaintiff it seems to be claimed that he is entitled to recover the lands, without complying with the conditions thus imposed by the statute, by reason of the alleged illegal sale of lands and tax certificates from the county to the defendant in 1899, set forth in the foregoing statement of facts. This is an action of ejectment. The statute expressly declares : “Every judgment rendered in any such action shall be conclusive as to the title established therein upon the party against whom it is rendered and upon all persons claiming from, through or under him by title accruing after the filing of a notice of the pendency of the action in the office of — 526 — tbe proper register of deeds, subject to tbe exceptions hereinafter contained.” Sec. 3088, Stats. 1898. See, also, sec. 3074, Stats. 1898. Whatever view may be taken of such sale of lands and tax certificates by the county to the defendant, yet it could not operate to relieve the plaintiff from the payment of what was justly and equitably due for the taxes, interest, and charges on the lands for the several years mentioned. The fact, if it be a fact, that the transaction was illegal, did not relieve the plaintiff from paying the amount imposed by statute as a condition of his recovery in ejectment. His right to recover at all is based upon the illegality of the proceedings upon which the several tax deeds were based. The manifest purpose of the statutes cited is to have the judgment in ejectment conclude all further controversy as to any claim by the defendant or any one claiming under it on account of any such taxes. Cook v. McComb, 98 Wis. 526, 530, 74 N. W. 353; Bell v. Peterson, 105 Wis. 607, 611, 612, 81 N. W. 279. The trial court was clearly wrong in limiting the amount to be paid by the plaintiff, as a condition of judgment being entered in behalf of the plaintiff, to the taxes of 1900 and 1901. Counsel 'for the plaintiff apparently attempted to cure such error by offering to pay the defendant, on its request, the amount of the taxes for the five years mentioned, respectively, and the costs of executing and recording the several tax deeds, with interest on all such sums at the rate of fifteen per cent, from the date of sale, but only on condition that the defendant would not appeal to this court from the judgment to be entered therein. The offer, being conditional, and not being accepted, was, of course, ineffectual. What is said upon this question in the last opinion filed in the Chippewa River Land Co. Case cited is applicable here. We must hold that the judgment is erroneous for failure to impose upon the — 527 — plaintiff the conditions prescribed in the statutes in the particulars mentioned. By the Court. — The judgment of the circuit court is reversed, and tbe cause is remanded for further proceedings in accordance with tbis opinion and as prescribed in tbe statutes.