Herbst v. Land & Loan Co.

Timms', J. The amended reply admits that the lands in question were taxable in 1895; that tbe taxes for tbat year were unpaid and returned delinquent to tbe county treasurer, wbo duly advertised and sold tbe land for tbe nonpayment of sucb taxes; tbat tbe county clerk executed a deed of tbe land purporting to be based on tbe certificate of tax sale for said delinquent taxes; tbat tbe tax certificate bad never been set aside or annulled and no action commenced for tbat purpose; tbat tbe tax bad never been paid or redeemed, and tbat more than three years bad elapsed since tbe recording of tbe said deed; and tbat tbe lands are vacant and unoccupied. Among matters affirmatively averred in tbe reply were tbe following: Tbe land was duly sold at public auction by tbe county treasurer of Eorest county on May 19, 1896, for $2.44, tbe tax of 1895, to Emil G. Rahr, wbo bid in the lands at tbe request of and for tbe benefit of tbe plaintiffs (tbe then owners). An entry of sucb sale was made in tbe treasurer’s salesbook. Tbe latter made out and signed tbe usual tax certificate of sale running to Emil G. Rahr as purchaser, but this certificate was never delivered to nor was tbe $2.44 paid by Rahr. Tbe land was not resold or re-offered for sale by tbe treasurer, but on tbe contrary some unknown time thereafter some unknown person fraudulently drew pen lines through tbe name of Emil G. Rahr in said certificate and inserted in lieu thereof tbe name of Eorest county, so tbat tbe latter appeared to be tbe purchaser at tbe sale. Thereafter tbe tax certificate was indorsed as required by statute by tbe county treasurer of Eor-est county and delivered to tbe defendant, which procured thereon tbe deed aforesaid from tbe county clerk, and said [506] deed does not show on its face that said Emil Gr. Rabr was such purchaser at said sale nor does it show that the grantee therein named was an assignee of said Emil Gr. Rabr, the purchaser as aforesaid. Specific denials in the reply are: (1) That the defendant is the owner of the land described in the counterclaim; (2) that the county clerk was authorized to execute said deed to said land. What is claimed to be a general denial follows in these words: “Further replying, plaintiffs deny, except as hereinbefore expressly admitted, alleged, qualified, or denied, that they have any knowledge or information sufficient to form a belief as to each and every allegation in said counterclaim contained.” There is an obvious difference between denying each and every allegation in a pleading and denying that the party has “any knowledge or information sufficient to form a belief as to each and every allegation” in the pleading. The latter form of expression is consistent with the possession of knowledge or information sufficient to form a belief of every allega1tion in the pleading except one. It affirms the lack of knowledge or information, not as to each allegation, but as to “each and every allegation.” If, however, we overlook this, it must be apparent that the supposed general denial reaches and relates only to allegations not theretofore (1) expressly admitted, (2) alleged, (3) qualified, or (4)- denied by the same pleading. The pleading, as we have seen, contained a full admission that the taxes for the year 1895 were unpaid and delinquent and the land duly advertised and sold for the nonpayment of such taxes, a qualified admission that a tax deed was issued by stating that the county clerk executed a deed of said premises purporting to be based on this certificate of tax sale, and an express admission that the deed was recorded and that more than three years elapsed since such recording, and that the land was vacant and unoccupied. Following the alleged general denial is a detailed description of the manner in which the lands were bid in by Emil G. Rahr [507] and of the alleged defects in the aforesaid deed. These defects are stated to he that said deed does not show on its face that Emil G. Rahr was such purchaser at said sale nor does it show that said grantee therein named was an assignee of Emil G. Rahr. But the same pleading shows that Emil G. Rahr was not a purchaser at said sale and that the grantee in the deed was not an assignee of Emil G. Rahr. If the deed had contained the former recital, the recital would have been false in fact. Sec. 1178, Stats. (1898), requires that the purchaser at a tax sale be named in the tax deed, but “purchaser” here means one who has made a completed purchase, and not a mere bidder who has forfeited his bid by-failing to pay for the tax certificate and who never obtained a delivery of the tax certificate. The cases of Krueger v. Knab, 22 Wis. 429; North v. Wendell, 22 Wis. 431; and Washburn L. Co. v. C., St. P., M. O. R. Co. 124 Wis. 305, 102 N. W. 546, are not applicable to the circumstances disclosed in the case at bar. When Rahr defaulted on his bid it was the duty of the county treasurer to declare the bid canceled and sell the land again, or else bring an action against Rahr for the purchase money. Sec. 1178, Stats. (1898). If the county treasurer decided to declare Rahr’s bid canceled and sell the land again he must do so at the same sale and before the tax sale is concluded, and if upon such resale he receives no bid he should, before the close of the tax sale, bid in the land for the county. The cause was presented in this court by both parties upon the hypothesis that the omission of the county treasurer to comply with these statutes and re-offer the land for sale after Rahr’s default was an irregularity fatal to the validity of the tax sale. It is, however, contended by the respondent that the tax title is not open to attack on account of this irregularity because more than three years have elapsed since the recording of the tax deed. It is contended by the appellants, first, that because the tax deed did not recite' that Rahr was the purchaser at the sale and the respondent his assignee the tax [508] deed was void on its face and therefore not protected by the statute of limitations against this attack; and, second, that tbe striking out of tbe name of Rahr and inserting tbe name of Forest county in tbe tax certificate constituted a fraud, and that therefore, witbin tbe rule of Mather v. Hutchinson, 25 Wis. 27, and McMahon v. McGraw, 26 Wis. 614, tbe tax deed was open to attack. Tbe controlling questions in tbis case, therefore, are: (1) Does tbe omission of tbe county treasurer to re-offer tire land for sale after tbe bidder at a tax sale has defaulted on bis bid, tbe erasure of such defaulting bidder’s name from the certificate of sale, and tbe insertion of tbe name of tbe county as bidder, constitute a fraud not covered by tbe limitation of three years prescribed by sec. 1188, Stats. (1898) ? (2) Do these acts constitute an irregularity not covered by said statute? We are unable to perceive bow tbe acts and omissions in question can be considered fraudulent. Tbe averment óf, tbe pleader stigmatizing them as fraudulent adds nothing to tbe pleading, nor does it change tbe essential character of tbe acts and omissions. Riley v. Riley, 34 Wis. 372; Landauer v. Vietor, 69 Wis. 434, 34 N. W. 229; New Bank v. Kleiner, 112 Wis. 287, 87 N. W. 1090. If these mere omissions of official duty by a tax officer, or this mere performance of official duty in an irregular or unauthorized manner, were held to constitute a fraud, such bolding would overturn many decisions of tbis court upon tbe subject of tax titles. Tbe cases of Mather v. Hutchinson, 25 Wis. 27, and McMahon v. McGraw, 26 Wis. 614, cited by appellants, do not relate to any such acts or omissions on tbe part of tbe tax officers. Upon tbe question whether or not tbe right to assail tbe tax deed on account of these errors of tbe tax officer is barred by tbe three-year statute of limitations above referred to, tbe counterclaim avers tbe execution and recording of a tax deed in accordance with tbe statute in such case made and provided. No specific denial in tbe reply meets tbis aver [509] ment. On the contrary, this averment is attempted to he qualified by the allegation in the reply that the county clerk executed a deed of said premises purporting to be based on the certificate of tax sale thereof for delinquent taxes thereon for the year 1895. The alleged general denial treating it as otherwise sufficient does not reach anything “alleged or qualified” in other parts of the reply. We must assume that the tax deed was in the form required by statute and that its' only formal defect was its failure to state that the lands were sold to Emil Gr. Eahr and that the grantee in the deed was the assignee' of said Eahr. This was no defect at all. Under the presumptions of law created by statute and attending the tax deed we must presume that the tax deed declared that Eorest county was the purchaser at the tax sale and that the grantee in the tax deed was the assignee of Forest county. That being the case, the tax deed was not, after three years from the time of recording, open to attack on the ground that the county treasurer failed to again offer the land for sale after Eahr defaulted on his bid, nor on the ground that the tax-sale certificate was then altered by striking out the name of Eahr as purchaser and inserting instead that of Forest county. Gilbert v. Pier, 108 Wis. 331, 79 N. W. 215; Kennan v. Smith, 115 Wis. 463, 91 N. W. 986; Milledge v. Coleman, 47 Wis. 184, 2 N. W. 77; Hotson v. Wetherby, 88 Wis. 324, 60 N. W. 423. It follows that the demurrer to the reply as not constituting a defense was properly sustained, because the reply admitted that more than three years had elapsed since the recording of the tax deed and that the land was vacant and unoccupied, and failed to show that the tax deed was void on its face, or to take issue with the averment of the counterclaim that the tax deed was fair on its face and drafted and executed in accordance with the statute in such case made and provided. By the Court. — The order of the circuit court is affirmed.