Corry v. Scudder

SiebecKer, T. The complaint sufficiently alleges that the plaintiff is the owner of the several alleged tax certificates and [106] that they are on the same tract of land. These allegations, if the allegations are sufficient in other respects, authorize her to include in one action of foreclosure of them all the certificates she holds upon the same tract of land. Sec. 1181, Stats. (Supp. 1906: Laws of 1899, ch. 337). This is sufficient to negative the first ground of demurrer, namely, that several causes of action have been improperly united in one complaint. The ground of demurrer urged in defendants’ behalf, and before this court, is that each of the several alleged causes of action in the complaint fails to state facts sufficient to constitute a cause of action. This is based on the claim that all the tax certificates, on which plaintiff rests her claim, fail to describe any land with sufficient definiteness to give the plaintiff as holder of such certificates a lien on the land. The several descriptions are copied into the foregoing statement. From a comparison of them it will be observed that they all refer to “Lot 1, H. Bentley’s 3rd Add.” to Marinette, and that the tax sales all pertained to this lot and embraced all of it “ex. pt. owned by B. E. Simpson, now W. B. Quinlan,” “part not owned by B. E. Simpson,” or “except part owned by W. B. Quinlan.” No point is raised as to the sufficiency of the complaint under this ground of demurrer, aside from the one that the descriptions of the alleged parcel of land are so defective that they fail to describe any land. Sec. 1047, Stats. (1898), provides: “In all assessment and tax rolls, and in all advertisements, certificates, papers, conveyances or proceedings for the assessment and collection of taxes, and proceedings founded thereon, . . . any descriptions of land which shall indicate the land intended with ordinary and reasonable certainty and which would he sufficient between grantor and grantee in an ordinary conveyance shall be sufficient.” This statute has been applied in numerous cases, wherein it is held that descriptions in tax proceedings must be given the same effect as descriptions in ordinary conveyances be [107] tween grantor and grantee, and if the descriptions indicate the land intended with ordinary and reasonable certainty they may he aided in their application to specified property by reference to extrinsic facts and circumstances. “Where the language in the description of the land conveyed, or excepted from the conveyance, is otherwise doubtful, a practical location by the agreement, acts, conduct, or declarations of the parties concerned, followed by adverse and exclusive possession, is sufficient to remove the doubt and give certainty to the description.” Meade v. Gilfoyle, 64 Wis. 18, 24 N. W. 413. “This is on the theory that the law will not declare a description void for uncertainty when the light which contemporaneous facts and circumstances furnish renders it definite and certain.” Murphy v. Hall, 68 Wis. 202, 31 N. W. 764. In this last case a description, “Part 5 of lot 4 of section 20, town 28 north, of range 22 east,” without reference to any record, plat, or description, or other extrinsic evidence to enable a court to ascertain the property, was held void for uncertainty. This was necessarily the result, since nothing in the description could be referred to by which the land could be ascertained. In N. Boyington Co. v. Southwick, 120 Wis. 184, 97 N. W. 903, the assessment roll described the part excepted from lot 7 as “a piece 10 ft. by 25 ft. out of the southwest corner.” This was assailed as void for indefiniteness and uncertainty, but the court held: “The uncertainty as to the parcel excepted could easily be made certain by reference to the Prentice deed, or hy inference from contemporaneous conditions, such as the occupancy by Prentice' of a particular piece answering the description.” In Scheiber v. Kaehler, 49 Wis. 291, 5 N. W. 817, a tax deed was assailed as void for indefiniteness in description of the land, which was described as “one quarter-acre (^) in the south half of northeast quarter, bounded north, west and south by H. Krohn’s land, east by milldam and Cedar creek,” [108] in section 9, etc. As to tbe sufficiency of this description in the tax deed the court observed: “It is not an uncertain description, unless it should appear upon investigation that Krohn did not have any land in that south half of the northeast quarter, which bounded a quarter-acre not owned by him, on the north, west and south, and which was bounded east by the creek and dam; but if, upon investigation, a quarter-acre should be found so bounded, and not owned by Krohn, then the quarter-acre would be located, and the description made perfect.” It will be observed that to make this description certain resort was had to extrinsic evidence to ascertain the land owned by Krohn and the boundaries and location of the land embraced in this deed. From these adjudications it is manifest that the statute has been liberally construed and a wide latitude has been allowed in its application, by permitting reference to extrinsic facts to ascertain with definiteness and certainty what land the tax proceedings embraced. The description in the instant case, in the first certificate, refers, properly, to a platted addition to the city and designates and covers all of lot 1, “ex. pt. owned by E. F. Simpson, now W. B. Quinlan.” In the Scheiber Case the exception referred to lands owned by Krohn, and it was held that a description of land in a tax proceeding which was described as bounded by land owned by a third person does not render the description void on its face for uncertainty, and that a reference to extraneous facts and circumstances, locating the land referred to by land owned by such third person, was proper to make it certain. And so here, if the description can be made certain by such evidence, the portion of lot 1 referred to in the proceeding could be located 'and the description made definite and certain. The complaint alleges a certain and definitely described piece of land as being the part excepted from lot 1 embraced in the certificate and as lying within fixed lines and metes and bounds. If the evidence on the trial sustains these allegations, then the calls of the statutes [109] are fully met and satisfied. In the light of the adjudications the facts alleged in the complaint are sufficient to constitute a good cause of action to foreclose each of the tax certificates described therein, and the court erroneously sustained the demurrer to the complaint. By the Court.- — -The order appealed from is reversed, and the cause is remanded with directions to the trial court to enter an order overruling the demurrer, and for further proceedings according to law.