Lamoreux v. Bayfield County

Barnes, J. The action brought to set aside the 1905 tax levy was commenced before the date fixed by law for the holding of the annual tax sale in May, 1906. The purchasers of the tax-sale certificates pendente lite were therefore bound by the judgment in the action, even though no notice of lis pen-dens was filed. Brown v. Cohn, 95 Wis. 90, 69 N. W. 71; Bell v. Peterson, 105 Wis. 607, 613, 81 N. W. 279. A judgment annulling a tax necessarily destroys any tax certificate issued by virtue of such tax and defeats any deed issued on such certificate. T. B. Scott L. Co. v. Oneida Co. 72 Wis. 158, 160, 39 N. W. 343; Hixon v. Oneida Co. 82 Wis. 515, 530, 52 N. W. 445. It was stipulated in this action that the 1905 tax, on account of which the tax certificates in suit were issued, was set aside in the suit brought for that purpose, and that the assessment upon which the tax was based and the tax certificates in question were likewise set aside, and that a reassessment of the lands described therein was ordered presumably under the provisions of sec. 1210b, Stats. (1898). It does not appear that any proceeding was either táken or contemplated to review such judicial determination, although an appeal might be taken therefrom. Johnston v. Oshkosh, 65 Wis. 473, 27 N. W. 320. The record is silent as to whether a [397] reassessment was in fact made. There is nothing before us to impeach the verity or concltisiveness of the interlocutory decree of the court, and under the facts presented it must beheld that it has wiped out the assessment upon which the tax certificates are based, as well as the tax itself, and has destroyed the certificates for all practical purposes in so far as they relate or pertain to the tax. The certificates as well as the tax and the assessment upon which they were based having been declared void, the liability of the county to refund the amount of the face thereof, with interest at seven per cent., became fixed by sec. 1184, Stats. (1898). Pier v* Oneida Co. 93 Wis. 463, 67 N. W. 702; Norton v. Rock Co* 13 Wis. 611, and cases cited in headnote. It is contended by the appellant that the purchase of the-tax certificates by the landowner was in substance and in fact a voluntary payment of the tax represented in the certificates, and that therefore no recovery can be had under the decisions-of this court in Babcock v. Fond du Lac, 58 Wis. 230, 16 N. W. 625; Parcher v. Marathon Co. 52 Wis. 388, 9 N. W. 23; Smith v. Lewis, 20 Wis. 350, and kindred cases. At the-time such purchase was made, the tax, the assessment on which it was based, and the tax certificates had been adjudged void. The certificates had no force or vitality as tax certificates. They had been destroyed for all purposes except one. They were evidences of indebtedness of the county to the-holder thereof, which, taken in connection with the decree declaring them a nullity, established the right of such holder to reimbursement from the county. We think they were merechoses in action which the plaintiff might buy on an equal footing with any one else and with the same right of enforcement that his assignor would have, and that the decisions relied on by appellant have no application to the purchase of tax certificates by the landowner under such circumstances as surround the purchase here. By the Court. — Judgment affirmed.