Draper v. Rodd

Owen, J. The trial judge denied motions to change the answers of the jury to the questions of the special verdict. He concluded that the warrant of the county treasurer was regular upon its face and protected the sheriff in making the levy irrespective of the validity of the pretended tax, but “that the sheriff, by failing to attend on November 30th at the time and place set for sale and then either go on with the sale or proclaim an adjournment, lost his right to sell the property except under readvertisement; and that the sale on December 1st without any readvertisement rendered him a ‘trespasser ab initio/ ” He denied judgment in favor of the plaintiff, however, because he was of the opinion that the provisions of secs. 74.73 and 74.74, Stats., were applicable to the situation. In brief, those sections provide that in actions to recover, an unlawful tax the plaintiff can recover only such sums as he paid over and above the taxes which were justly chargeable against the property taxed, and if the court is unable to determine such sum with reasonable certainty, the action shall be continued for a sufficient time to permit a reassessment of the property affected by such void assessment. In other words, the court held that while the sheriff acted as a mere trespasser in selling the lumber, nevertheless this action, brought for the purpose of recovering damages for the conversion, is to be treated as an action to recover a tax. This was clearly error. This was not an action to recover a tax, and the statutes referred to have no application whatever. Granting that the sheriff had a right to seize and sell the lumber under the warrant of the county treasurer, it was necessary for him to proceed in accordance with the requirements of law. The law required that he give notice of the time and place of sale. If he failed to give such notice, the warrant of the county treasurer afforded him [6] no protection. If he assumed to sell the lumber, without giving the proper notice, he became a trespasser and the liabilities of a trespasser attached. It is in this capacity that he is called upon to respond in this case. While it may be assumed that he had a warrant justifying him in seizing and selling the property for the purpose of collecting the tax, it was necessary for him to proceed in the manner provided by law in order that he be protected by the terms of the warrant. When he assumed to sell the lumber without giving the notice required by statute he was not acting under the warrant and forfeited the protection which the warrant accorded him. The case of Keystone L. Co. v. Pederson, 93 Wis. 466, 67 N. W. 696, which the trial court thought governed this case, has no application. In that case the town treasurer made a levy on certain property for the purpose of collecting a tax due the town by the owner of the property. Before the day of sale the defendant made his return to the county treasurer, but not of the taxes in question, upon the ground that he had a valid lien on property belonging to plaintiff sufficient to satisfy such taxes. Thereafter and before sale was made the plaintiff commenced an action of replevin to recover the property, upon the theory that the right of the defendant to hold the property ceased on the return day of the warrant. It was held that the town treasurer possessed the same powers under a tax warrant that are possessed by sheriffs under an execution, and that as sheriffs after having lawfully seized property under an execution may sell it after the return day of the execution, so may the town treasurer sell property lawfully seized under his warrant after the return day of such warrant. It will be noticed, therefore, that the town treasurer at no time became a trespasser. He wás acting within the law at all times. Under, such circumstances, it was said in that case that the remedy provided by the then sec. 1164 was the only remedy available to the taxpayer' in that case. The two [7] cases are entirely different. In the Pederson Case the action was against a lawful effoid on the part of the town treasurer to collect the tax. Here the sheriff unlawfully sold the . lumber and is asked to respond to his liability as a trespasser. It seems plain that neither sec. 74.73 nor 74.74 has any application, or affords any barrier, to the maintenance of this action. It was ux-ged before the tidal court and is ui-ged here that the plaintiff is estopped from maintaining this action because Mitchell, the pex-son who had custody of the lumber and had acted for the plaintiff in negotiating sales thereof, .told the sheriff on the day of the sale to go ahead and sell the lumber. It is claimed that the sheriff acted' upon this suggestion of Mitchell, believing him to be the agent of the plaintiff with power to bind him in that respect. It is conceded that Mitchell had no express authority to bind the plaintiff upon that occasion. If the sheidff was justified at all in thus relying upon the suggestion of Mitchell, it was because Mitchell had apparent power in the premises. We may concede that Mitchell acted for the plaintiff with respect to the care, and even the sale, of the lumber prior to the levy by the sheriff. The levy by the sheriff seidously interfered with the status of the lumber. By that levy the possession of the property was taken from both Mitchell and the plaintiff. Neither of them thereafter could exercise any lawful dominion over the same. A new relationship was created between the plaintiff and the sheriff. The sheriff was demanding the payment of a tax from the plaintiff which the plaintiff contended could not be lawfully collected. Granting that Mitchell had power to bind plaintiff in all matters relating to the care and marketing of the lumber-, there is not a scintilla of evidence in the case that he had any authority to act foxx the plaintiff in any manner relating to the controversy over the validity of the tax. This was an entirely different subject and one with reference to which Mitchell had no power to bind the plaintiff. The sheidff was dealing [8] with the lumber on the 1st day of December merely as a tax collector. He was lawfully in possession of the' lumber, though he had no lawful authority to sell the same without readvertisement. His possession of the lumber had deprived not only the plaintiff but Mitchell of any dominion over the same, and the subject of the controversy between the plaintiff and the sheriff on that day was the tax and not the lumber. While the plaintiff perhaps could have consented to a sale of the lumber on that day to pay the tax, Mitchell was without any power to' bind the plaintiff in that behalf. Neither had the plaintiff done anything which justified the sheriff in entertaining a- belief that Mitchell possessed such authority. The trial court rightly held that no estoppel took place. The plaintiff accepted from the sheriff, of the amount realized from a sale of the Jhtmber, the balance remaining after the payment of the pretended tax, costs and expenses of sale, etc. It is claimed that his acceptance of this money estops him from maintaining this action. There are cases holding that judgment creditors accepting a balance remaining upon a judicial sale are estopped to challenge the sale so as to defeat the title of the purchaser where such acceptance occurs after they know facts rendering the sale void. It is said that such act amounts to a ratification of the sale. However, we know of no case where it is held that the acceptance of a balance under such circumstances estops the judgment creditor from maintaining an action against the sheriff, and the principles governing estoppel can lead to no such conclusion. In order to raise an estoppel the action of the person estopped must be such as to induce another to take some action which he would not otherwise have taken. The receipt of the money by the plaintiff certainly was no inducement to the sheriff to sell the lumber, and we see no element of estoppel in that circumstance. Here the plaintiff is not attempting to set aside the sale or to recover the lumber, so [9] that the acceptance of the balance tendered by the sheriff was not at all inconsistent with the passing of title to the purchaser. Neither does it amount to a waiver or an accord and satisfaction. The balance was not turned over by the sheriff nor received by the plaintiff with any idea on the part of either that it was in satisfaction of the sheriff’s liability as a trespasser. The lower court correctly held that this circumstance did not constitute a defense to the action. We see no escape from the conclusion that the sheriff is liable to the plaintiff for the value of the lumber sold as a conversion thereof, less the sum which the plaintiff has received. By the Court. — Judgment reversed, and cause remanded with instructions to enter judgment in accordance with this opinion.