Olson v. McDonald

BaeNes, J. Tbe appellant contends that plaintiff could not take a valid tax deed, inasmuch as it was his duty to redeem the taxes on account of which the tax deed was issued, (1) because of his possession, and (2) because of his ownership of the land. 1. There is no evidence that plaintiff was in possession of the premises after the notice of June 1, 1909, was served upon him, although the inference is strong that he was. The evidence does not show whether his possession at that time was. that of employee, contractor, lessee, licensee, or trespasser. On this state of the evidence it did not appear that there was any duty on plaintiff’s part to redeem the outstanding taxes because of his possession. Link v. Doerfer, 42 Wis. 391. There is no suggestion that plaintiff was in possession when the tax was levied or that he claimed any interest in the land for more than three years thereafter, or that the tax was assessed against him. The cases relied on by appellant do not hold that the mere taking of possession of land even under a claim of ownership after the same is sold for delinquent taxes obligates the possessor, to redeem such taxes and disqualifies him from taking a tax deed on outstanding tax certificates. Other considerations may impose the duty to redeem, but possession alone does not. 2. Plaintiff did not become the owner of the land until June 1, 1909. There is no claim that the tax was assessed against him. He was under no duty to pay this 1905 tax when it became due and payable. He owed nothing to the judgment creditor and was under no obligation to pay the judgment. We fail to see wherein he owed any duty to such creditor to remove outstanding tax liens from the-land for its benefit. If the plaintiff owed a legal duty, contractual or otherwise, to redeem the tax he could not take a valid tax deed, and the taking of such a deed would amount to a redemption. This matter of legal duty is the correct test to apply in such [442] cases. Bassett v. Welch, 22 Wis. 175, 177; Lybrand v. Haney, 31 Wis. 230. No'other attack is made on the validity of the tax deed. By the Court. — Judgment affirmed.