Maxcy v. Simonson

Cassoday, C. J. 1. It is claimed that the sale from tbe county to Simonson was void because tbe deputy county treasurer, Axelberg, was interested in making tbe sale. Tbis contention is based upon tbe statute which prohibited sucb deputy from making any purchase, directly or indirectly, at any tax sale, or to purchase any tax certificate or tax title held by tbe county. Sec. 1143, Stats. 1898. It is enough to say that tbe trial court found that Axelberg was not so interested in making such purchase, and tbe evidence is sufficient to support such finding. 2. It is claimed by counsel that tbe amount which the court required Maxcy to pay into court as a condition of relief from tbe tax deed and tax certificates held by Simonson was excessive and not authorized by tbe statute. It was found by tbe court and conceded by counsel that tbe tax deed was illegal and void for errors and irregularities not going to tbe groundwork of tbe tax on which tbe same was based. Both parties cite and apparently rely upon tbe same section of tbe .statute (sec. 1210h, Stats. 1898). Tbe portion of that section applicable to tbis case states that tbe party claiming under tbe,original title, “if be show himself otherwise entitled to judgment, shall, before the entry thereof, within a reasonable time to be fixed by tbe court, pay into court for tbe person or persons claiming under sucb tax sale or tax certificate tbe amount for which sucb land was sold, and th'e amount paid by such person or persons for taxes levied upon tbe premises subsequent to sucb sale, with interest on-all such [656] amounts at tbe rate of fifteen per cent, per annum from tbe times of payment until tbe said money be so paid into court; and in default of sucb payment witbin tbe time so fixed tbe defendant [tax-title claimant] shall have judgment in tbe action.” Counsel on eacb side cite and seemingly rely on Blackman v. Arnold, 113 Wis. 487, 492, 493, 89 N. W. 513, in support of tbeir construction of tbe language quoted. In tbat case tbe land was sold May 15, 1894, for delinquent taxes of 1893, and was bid in by tbe county at tbe tax sale. On January 6, 1895, tbe tax certificate given on tbat sale was purchased by and delivered “to Webb on payment of tbe face amount of sucb certificate.” Tbe only controversy in tbat case was whether tbe defendant, claiming title under tbe original owner through tbe foreclosure sale, was required by tbe statute quoted “to pay interest on tbe amount of tbe 1894 certificate from its date, May 15, 1894, instead of from tbe time Webb paid tbe county therefor, January 6, 1895, the excess being $9.95,” and it was held tbat tbe interest should be reckoned from said last-mentioned date. In tbe case at bar the original owner of tbe lands failed to pay tbe taxes assessed thereon for tbe years 1896, 1897, 1898, and 1899, and they were sold in due course to Bayfield county; and tbe certificates on sucb sales were duly assigned and transferred by tbe county to Simonson September 1, 1900. In harmony with tbe ruling of the court in Blackman v. Arnold, supra, the trial court, as one of tbe conditions of relief, required Maxcy to pay into court for tbe use of Simonson tbe total and aggregate amount of all of said tax certificates so assigned to Simonson, “with interest thereon at tbe rate of fifteen per cent, per annum from the date of such assignments, September 1, 1900, until said money be so paid.” And so the trial court, as one of tbe conditions of relief from said tax deed and tax certificates, required Maxcy to pay into court for the use of Simonson tbe amount of tbe tax certificates upon which said first tax deed was based, together with interest thereon [657] at fifteen, per cent, per annum from tbe time Simonson procured. a quitclaim deed from tbe county, September 17, 1900, until said money be so paid. Tbe correctness of sucb requirement as to tbe tax deed seems to be conceded. Tbe contention is that Maxcy should only bave been required to pay into court, as a condition of relief from said tax deed and tax certificates, $100, wbicb was tbe amount wbicb Simonson paid tbe county for tbe quitclaim deed September 17, 1900, and interest tbereon at tbe rate of fifteen per cent, per an-num from that date to tbe time of payment. No authority is cited on either side of tbe question so presented. The language of tbe statute quoted furnishes some plausibility to the contention. As indicated, tbe requirement to “pay into court,” in case a tax deed has been taken, “tbe amount for wbicb sucb land was sold,” manifestly refers to tbe tax sale and tbe amount for wbicb tbe tax certificate was issued, with interest as stated in tbe statute; and that is so even where tbe land has been bid in by tbe county and no money has in fact been paid. So it is manifest that sucb interest is to be added to “tbe amount paid . . . for taxes levied . . . subsequent to sucb sale . . . from tbe times of payment until tbe said money be so paid into court.” Tbe same is true as to tbe purchase of tax certificates of sale at their face value, as in Blackman v. Arnold, 113 Wis. 487, 89 N. W. 513. Tbe question that here confronts, us is whether tbe same is true where tax certificates are purchased at a discount, as in tbe case at bar. In view of tbe fact that tbe amount of tbe tax is never anything more than a very small per cent, of tbe value of tbe property upon wbicb it has been assessed, can it be assumed that in enacting tbe'stat-ute in question tbe legislature bad in contemplation that tax certificates would be sold for less than their face value % This court held long ago that tbe performance of an agreement by a county to sell its tax certificates for an exceedingly low and nominal value might be enjoined at tbe suit of a taxpayer of [658] tbe county. Willard v. Comstock, 58 Wis. 565. See Webster v. Douglas Co. 102 Wis. 181, 189, and cases there cited. Had tbe owner of tbe-lands in question attempted to- redeem tbe same, be would, of course, bave been compelled to pay tbe full face value of sucb tax certificates, witb interest at tbe rate mentioned from tbe respective dates of sucb certificates. Sec. 1165, Stats. 1898. Tbe manifest purpose of tbe statute in question is to secure tbe early payment of taxes by tbe owners of lands, and to compel those who neglect paying their taxes to proceed witb promptness in case they desire to- contest tbe validity of sucb tax sales. It certainly was not tbe purpose of tbe statutes to enable sucb owners to escape paying ,a portion of their taxes by reason of tbe county having sold its tax certificates at less' than their face value. We find no error in tbe findings of fact in tbe particulars mentioned. 3. Error is assigned because tbe judgment entered by tbe clerk of tbe court adjudges costs and disbursements against Maxcy and in favor of tbe other parties, which costs and disbursements are taxed in favor of Simonson at $98.41. Sucb judgment is conditional and certainly premature and erroneous. Tbe statute quoted expressly required that tbe moneys to be paid into court should be so- paid “before tbe entry” of judgment in favor of tbe original owner; “and in default of sucb payment within the time so fixed the defendant [tax-title claimant] shall bave judgment in tbe action.” Thus it appears that tbe character of tbe judgment to be entered and the party in whose favor the same is to be entered depend" ¡upon whether tbe required amounts shall be so paid into court — a fact which tbe record fails to disclose has been determined. Tbe findings and judgment seem to bave substantially disposed of the merits, but they left a “condition to be performed in order fully to determine tbe rights of tbe parties,” and hence tbe judgment was, at most, merely interlocutory. Sec. 2883, Stats. 1898. Tbe proceedings in such cases are quite similar to those in ejectment under sec. 3081, [659] Stats. 1898, where tax titles are defective. One of tbe consolidated actions was brought by the landowner to quiet title pursuant to sec. 3186 of the Statutes. Had he substantiated his title under that section he would have been entitled to -costs, because none of the defendants therein “disclaimed all title to such land” nor gave any “release thereof.” Besides, such tax deed and all of said tax certificates were held to be illegal and void, and so the tax-title claimant failed. We must hold that the judgment so awarding costs is erroneous and contrary to the statutes in the particulars mentioned. No other question requires consideration. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.