Roach v. Sanborn Land Co.

Dodg-b, T. The appellant’s principal contention upon this appeal is that the defendant, who held the ostensible tax titles on the mortgaged property, having acquired the fee title, which was burdened with the duty of paying all taxes, is not entitled to receive anything as a condition of declaring plaintiff’s mortgage interest free from the defendant’s tax liens. That contention is, however, in contradiction of the express decision of this court upon the former appeal to the effect that, as a condition of canceling those tax deeds, plaintiff should repay the cost and taxes with fifteen per cent. [438] interest. That decision is the law of the case, and must control, whether right or wrong. Cole v. Clarke, 3 Wis. 323;. McCord v. Hill, 117 Wis. 306, 94 N. W. 65; State v. Wis. Cent. R. Co. 133 Wis. 478, 113 N. W. 952; Steele v. Korn, 137 Wis. 51, 120 N. W. 261. It is also claimed, however, that the order of the trial court went further than required by this mandate, for that the latter' only commands that there shall be paid all “subsequent taxes paid by the tax-title claimants ’’ and that taxes paid after November, 1902, by the Sanborn Land Company, when it held the fee title subject to a duty to pay taxes, cannot be deemed to have been paid by it as the tax-title claimant, although it also held certain tax liens. But the order for payment includes those subsequent taxes. We see no escape from this contention of plaintiff. The law is well settled that expenditure of money for taxes by the holder of the fee title will be deemed a payment of the tax, and especially so as-against a mortgagee whose mortgage requires the holder of the equity of redemption to pay all taxes. In such case the-owner of the equity of redemption cannot be allowed, as against the mortgagee, to ascribe such payment to his attitude-as tax-title claimant, especially where the tax title is void, as a title, and effective merely as a lien. Smith v. Lewis, 20 Wis. 350, 354; Avery v. Judd, 21 Wis. 262; Hill v. Buffington, 106 Wis. 525, 535, 82 N. W. 712; Allen v. Allen, 114 Wis. 615, 630, 91 N. W. 218. This would be the measure of the legal rights of the parties under sec. 1210ft., Stats. (1898), and it is not to be presumed that the mandate of this court was intended to extend any further, in' the absence of clear and unambiguous language. At the time of the former decision there had been no showing that any taxes had been paid subsequent to the commencement of the suit in November, 1902, or that the defendant claimed reimbursement of any such taxes, and, while the court was informed of the fact that the fee title had been acquired by the Sanborn Land [439] Company, and might Raye inferred that probably somebody bad paid taxes between 1902 and April, 1908, when the decision in this conrt was rendered, yet, in the absence of assertion of any such claim, there is no necessary implication that the words of the mandate were intended to inclnde subsequent taxes paid by the holder of the fee title. We therefore conclude that the plaintiff was not required, either by sec. 1210b or by the mandate on former appeal, to reimburse the defendant for any payment of taxes made after the commencement of the suit, and that the order requiring it is erroneous. Respondent protests that any error in this regard is excluded from consideration on this appeal by failure of the plaintiff to reserve any exceptions or to settle a bill' of exceptions containing all the evidence. These omissions exist, and have occasioned us much embarrassment. We think, however, that the record discloses the error, although perhaps not in its exact extent. The report of the referee, which is part of the record, expressly states that in the sum of $3,575.46, found to be due the defendant up to July 8, 1908, is included all taxes for the years 1895 to 1907, also that the total amount necessary to redeem on November 15, 1902, was only $1,486.91. The order of the court is expressly founded upon, and confirms and adopts, the report of the referee. This order is one obviously involving the merits and which necessarily affects the judgment, and therefore, by virtue of see. 2898, Stats. (1898), is part of the judgment roll and of the record, and by virtue of see. 3070, Stats. (1898), may be reviewed upon appeal, whether excepted to or not. The facts found are not questioned, but merely the conclusion of law, reviewable without exception. It clearly appears from the record, therefore, that the appellant was erroneously compelled to pay the amount of all taxes assessed for the years 1902 to 1907, inclusive, with fifteen per cent, interest thereon up to the 16th of December, 1908. The amount [440] thereof must be ascertained and refunded to appellant ■with six per cent, interest from the date when respondent received the same, apparently March 6, 1909. This can probably be best accomplished by a direct order, when the amount is ascertained, commanding the repayment, enforceable either under the contempt powers ’ of the court or by authorizing suit upon the bond filed by respondent. This can probably be done without disturbing the'judgment, which, after such repayment is accomplished, correctly adjudicates the rights of the parties. The printed case on this appeal is in no sense a compliance with Supreme Court Rule 6, requiring it to contain “an abridgment of the record so far as necessary to present the questions for decision.” It contains many pages of wholly irrelevant matter by no means necessary or pertinent to the questions brought up on appeal, and it fails to contain many essential parts of the record, whereby this court has been driven, at the expense of much time and labor, to a search through the manuscript record. Rule M prohibits the allowance of costs for such case. By the Court. — Judgment affirmed, and cause remanded for further proceedings in accordance with this opinion. Appellant to recover costs, except for printing ease.