Patterson v. Cappon

SiebeceeR, J. Tbe finding of the court that plaintiff was evicted by the conveyance to Heller under the tax deed from the county for the delinquent tax of 1893 is assailed by appellant upon the ground that the title thus acquired by Heller was extinguished by the taking of a subsequent tax deed based upon the tax sale for the unpaid taxes of 1894. There is no dispute that Heller obtained two tax deeds upon the lot,' the first in October, 1897, based on the delinquent tax of 1893, and the second in May, 1898, based on the delinquent tax of 1894. The claim is that, since the second deed was based on a tax levied subsequent to the one of the first tax deed, this second tax deed cuts off all title and interest conveyed by the first tax deed. Such would unquestionably have been the result if the second conveyance had been to another person than the grantee under the first tax deed. No satisfactory reasons are presented showing why such a consequence-should follow where the same person takes the two convey-' anees. If conveyances are made to different persons under such circumstances, it is obvious that the failure of the grantee in the prior tax deed to pay subsequent taxes must result, in legal effect, the same, as regards the state’s enforcement of its lien against the land by sale and forfeiture of title, as default by the original owner to discharge this lien against the land. No such consequences are necessarily involved when the tax-title grantee secures a second tax deed on a tax certificate issued prior to his first deed. Under such circumstances the state, having received payment in full of its tax, may convey the title arising out of such sale, the grantees being the same person. The title thus conveyed raises no conflict of adverse interest or. ownership, and no revocation or foreclosure of the interest vested under the prior deeds need be effected to grant a clear title by the separate deeds. Uqder such circumstances there is no obstacle in the law to letting the title and interest covered by each deed stand as the foundation of a grant, unaffected by subsequent conveyances, and [444] to treating them as separate conveyances and to allowing any subsequent one to aid whatever infirmity may exist in a prior one. This view was adopted in the case of Lybrand v: Haney, 31 Wis. 230, where the tax-deed grantee took deeds on sales for taxes which were subsequent to the one on which the first issued but prior to the issuance of the first deed. Tho court there said: “Hence the taking of the tax deeds upon the certificates issued on the sales for nonpayment of the taxes for the last-mentioned years, instead of paying such taxes, was no violation of any duty or obligation. Under these circumstances we see no good reason why the plaintiff could not strengthen his title by taking such deeds, or why he may not maintain this action upon them, notwithstanding he may have a good title without them by virtue of the deeds” theretofore issued. This meets appellant’s contention that no rights could be claimed under the first tax deed to Heller. We must hold that this first tax deed remains a valid conveyance of the title and that Heller conveyed such title to his grantee;, Smith. It is contended that the purchase by Smith was for the plaintiff’s benefit and that he is, in fact, the purchaser under such conveyance. The court found that plaintiff refused to purchase Heller’s interest or to become interested in that transaction in any respect after notice that his attorney had furnished Smith the money to purchase the lot, and that ho in no way acqifired any .legal or equitable rights to the premises by virtue of that transfer. The evidence on this subject is not in conflict, and nothing appears to impeach the plaintiff’s claim that he absolutely refused to purchase the outstanding tax title or to become a participant in the purchase by Smith for his attorney. No way is suggested and none is perceived of compelling him to take the Smith title and pay the consideration actually received by Heller. The evidence fails to show that plaintiff colluded with his attorney to make 'this purchase for-his benefit or interest. This state of facts [445] is conclusive and necessarily refutes - appellant’s claim that plaintiff is the beneficiary in fact under this sale. Another answer to this contention may be found in the conclusiveness of the judgment in the case of Smith against plaintiff, which adjudges the- title to the lot to be in Smith, after plaintiff had notified defendants of the object of this action, had served them with copies of the summons and complaint, and had tendered them the defense in the action. We must hold that the court’s findings on this issue are sustained by the evidence and that the title and possession vested in Ileller and his grantee, Smith, and that plaintiff’s, complaint of an eviction is established. The warranty of peaceable and undisturbed possession, as stated in the opinion on the former appeal, “is, of course, breached by an eviction which deprives the grantee of the possession so warranted, and gives him the right of substantial recovery limited to the original purchase price of the land.” The court awarded' damages in the sum of $618, the amount plaintiff alleges he paid to Debus for the land. Appellant claims that this is excessive, and that the item of $414, paid on the mortgage, was improperly allowed. The damages allowed were made up of $204, the sum paid by plaintiff to Debus in money, and the sum of $414, the amount of the mortgage on the land when so transferred and which plaintiff assumed to. pay as part of the consideration. The defendants admit the payment to Debus of $204 in money,, and allege that the plaintiff paid the mortgage indebtedness,, took an assignment of the same, and that such assignment, and payment “constituted a payment of said note and mortgage which said plaintiff had assumed and agreed to pay.”' These admissions are quite clearly to the effect that there was no issue taken with the plaintiff upon the allegation that he actually paid the sum of $618 as the consideration for the lot, and that he assumed the mortgage under the deed from Debus and wife and had paid it before the action was [446] commenced. The record, however, discloses that this deed was introduced in evidence and submitted to the trial court, and the court found upon this question that plaintiff by such conveyance assumed payment of this mortgage as part of the consideration for the sale and transfer thereof. The bill of exceptions does not contain this deed; reference is, however, made to it. Under these circumstances it must be presumed that it contained an agreement of the parties showing that plaintiff assumed payment of this mortgage as part of the consideration. Post v. Roberts, 121 Wis. 605, 106 N. W. 1099. This in itself is sufficient to sustain the court in its •conclusion that plaintiff paid $618 as the purchase price of the land and in holding that the plaintiff paid the mortgage so assumed by him. The amount so paid was a part of the damages' in the case, and judgment was properly awarded for the recovery of the sum of $618 and interest. , By the Court. — Judgment affirmed.