United States National Bank v. Lake Superior Terminal & Transfer Railway Co.

[541] The following opinion was filed December 2, 1919: Winslow, C. J. It is conceded that all remedy by personal action on the contractors’ certificate is barred by the provision of sec. 1183, Stats., and that this fact is conclusively determined by the judgment in the former action. The respondent claims, however1, that this fact does not in any way affect the lien of the tax-sale certificate, and in support of this position relies upon the analogy of the cases which hold that although the six-year statute of limitations may have run upon a note, still an action may be thereafter maintained to foreclose the lien of a mortgage given to secure the note, because the mortgage is not barred until the lapse of twenty years after its execution. Duecker v. Goeres, 104 Wis. 29, 80 N. W. 91. We do not decide whether that principle is applicable to the present case nor do we intimate any opinion upon the question, but we shall assume for the purposes of the action that it is. Upon this assumption the question is, Has the statute of limitations run upon the tax certificate? Sec. 1182, Stats., provides a limitation of six years from the day of sale upon all tax certificates except upon the tax certificates issued to and ozvned by counties or municipal corporations or their assigns, as to which certificates the limitation does not begin to run until six years from the date of the assignment of the certificate by the county or municipal corporation, not exceeding, however, fifteen years from the date of sale. The certificate in question was issued to the county, but was it ozvned by the county within the meaning of the law? The word “own” has not always the same meaning. It is often used to characterize an interest less than absolute ownership. Merrill R. & L. Co. v. Merrill, 119 Wis. 249, 96 N. W. 686; State ex rel. Marshall & Ilsley Bank v. Leuch, 155 Wis. 500, 144 N. W. 1122. Where there is doubt as to the sense in which the word is used the object sought by the statute is the most important consideration. [542] The object sought in exempting counties from the six-year statute as to all certificates held and owned by them undoubtedly was to protect the public revenues and treasury from danger of depletion by the early running of the statute. Was it intended to protect contractors ? We think not. This court has very emphatically held that “in case lands, sold for the purpose of enforcing assessment liens, are bid in by the county, 'the certificates of sale, when issued, are not the property of the county, but of the holders of the special assessment certificates,” the county being merely a trustee for such holders and bound to turn over the tax certificates to such holders on surrender by them of their special assessment certificates. State ex rel. Donnelly v. Hobe, 106 Wis. 411 (82 N. W. 336) at p. 422. We, see no flaw in the reasoning on which that case was founded. It follows that, while the county nominally held the tax certificate In question, it wa.s in fact the property of the holder of the special assessment certificate and was not owned by the county. - The infinitesimal interest in the way of fees and charges which the county was entitled to receive before it assigned the. tax certificate to the contractor or his assigns cannot seriously be considered as vesting any ownership thereof in the county. The respondent argues that because by sec. 926 — 137, Stats., it is provided that the contractor or his assigns, after receiving the tax certificate from the county and “within the time limited by law in the case of tax certificates of sale, for -other taxes,” may demand a tax deed, and because the time limited by law in case of lands bid in by the county for other taxes does not expire till six years from the assignment of the tax certificate by the county, ergo, it must be held that the time does not expire in case of special assessment certificates until six years from-the assignment of the tax certificate. This argument ignores the fact that all certificates are barred by sec. 1182 at the expiration of six years'from the [543] date of issue except such as have been issued to and are ozvned by the county. We discover no other exceptions to the six-year limitation; and, having reached the conclusion that the certificate in question was never owned by the county within the meaning of the law, we conclude that the present action was barred by the statute. By the Court. — Judgment reversed, and action remanded with directions to dismiss the complaint.