Hamilton v. City of Fond Du Lac

25 Wis. 490

Opinion

Paiíte, J.

The decisions of this court in The State ex rel. Roe v. Williston, 20 Wis. 228, and in Crane v. Janesville, id. 305, have settled the rule that a,n assessment against one person of lots owned by himself and of lots owned by others, as a single assessment, is void. This, however, must be understood to be subject to the exception, that the person against whom the assessment is made is not the occupant of such portion of thé lots as he does not own, inasmuch as the statute allows lands to be assessed to the owner or occupant.

The complaint in this case shows a good cause of action within this rule, to cancel and set aside the tax certificate upon the plaintiff’s lots. It shows that there was one single joint assessment, for the improvement of the river, against the plaintiff’s lots, and other lots belonging to his wife as her separate property, and of which she was in possession. The fact that she was the plaintiff’s wife, cannot distinguish the case from one where the owner of the other lots was a stranger. Under the law as it now is, her rights of property are just as distinct from his as are those of any otlier person ; and the same rule in respect to assessments must prevail in both cases. Each is entitled to know the amount of assessment against Ms or her own lots. And where the assessors undertake to assess a number of lots in one assessment against one person, they do so at the risk of having the assessment void, unless he is either the owner or the owner and occupant of all. And chapter 139, Private and Local Laws of 1868, which attempts to legalize the assessment of the commissioners for this improvement, cannot be held to have removed the difficulty. It provides that the. assessment shall be valid “notwithstanding any omission, defect' or irregularity” in the proceedings. But it would clearly be going beyond the scope and intent of this ,act, to say that it made valid an assessment against one person of a tax upon another person’s lots. That is something more than a mere omission, defect or irregularity in the proceedings; and as we think the legislature has.not attempted to make it valid, it is not necessary to determine whether it could have done so if it had attempted it.

It is said by the appellant’s counsel, that there is no cause of action shown to remove a cloud upon the title, because if the assessment is void its invalidity appears of record. But this is not so, necessarily. For it does not1 appear of record who occupied the lots. And as the statute authorizes the lots to be assessed to the occupant, if the plaintiff had occupied the lots belonging to his wife the assessment might, under that statute, have been proper against him. Upon this ground it appears that the certificate would be a cloud upon the plaintiff’s title, because he would have to resort to proof' of matters in pais to show its invalidity.

And as there was sufficient reason for equitable aid in this respect, the jurisdiction once having attached, in accordance with a familiar principle, the court should give all the relief to which the party might be entitled, although some part of it might otherwise have been recoverable in an action at law. It was, therefore, proper to restrain the sale of the personal property of the plaintiff which had been seized for this tax, although for that purpose alone a court of equity would not have interfered by injunction, upon the ground that the plaintiff might have had an adequate remedy at law.

As we hold the assessment invalid for the reason above given, it becomes unnecessary to determine whether the city had any authority to assess the lots at all for this river improvement.

By the Court. ■ — The order overruling the demurrer to the complaint is affirmed.