Perkins v. Wilkinson

57 N.W. 371, 86 Wis. 538, 1893 Wisc. LEXIS 222

• Court: Wisconsin Supreme Court
• Decided: December 29, 1893
• Status: Published

Opinion

Finney, J.

1. It is plain that the defendant Webster occupied such a relation to the lands in question and to the plaintiff, as the owner and holder of the three mortgages thereon, that it became and was his duty to have paid the taxes for which they were sold in 1887 and deeded to him by tax deed in 1890. The procuring by him of the tax certificates of sale and tax deed thereon operated as a redemption of the lands, as between the plaintiff and Webster, so that as between them the tax deed, as an instrument of title, was void. Webster was the real beneficial owner of the land for over seven years, with an apparent legal ownership at times in different other persons, evidently to better promote plans and purposes which he may have intended to carry out in respect to third parties. The farm had been purchased with his means, and it was substantially all he had, as he told the plaintiff. As landlord he was bound to pay the taxes, though the land was actually occupied by his tenants or croppers under him. The collector, under his warrant, could enforce payment of the taxes as against them, and by sec. 1154, S. & B. Ann. Stats., they could recover the ardount against him, with twelve per cent, interest, or they might retain the same out of the rents. For all purposes of taxation, he was in possession, and he was claiming title to the farm. He had agreed to pay the two elder mortgages as a part of the consideration for his purchase, and was therefore, as between him and the plaintiff, who held them, bound to pay the taxes. The cases are numerous, in this state and elsewhere, in support of the general proposition that no one can acquire a valid tax title founded upon a sale for taxes which it was his duty either legally or equitably to pay, and enforce it as against any person who would be prejudiced by his neglect. Black, Tax Titles, § 556; Smith v. Lewis, 20 Wis. 350; Avery v. Judd, 21 Wis. 264; Bassett v. Welch, 22 Wis. 175; Whitney v. Gunderson, 31 Wis. 379; Fallass v. Pierce, 30 Wis. 443; Newton v. Marshall, 62 Wis. 8. Webster recognized his liability to pay these taxes, and falsely and deceitfully represented to the plaintiff that the taxes in question had been paid, with the intention of preventing him from making redemption while yet it was in his power, so that he (Webster) could work out his scheme to fraudulently cut off the plaintiff’s mortgages. After having succeeded in thus deluding the plaintiff and obtaining the tax deed, he twice openly boasted of the 'success of his scheme, and had the assurance to testify on the stand, in open court, that he “ thought it was a pretty mean trick, but it didn’t make any odds what he thought.” It is needless to search further for evidence that the tax deed in question was the result of a deliberate and outrageous fraud.

2. The circuit court very properly held that Wilkinson was not an innocent purchaser. He knew perfectly well of the existence , of these mortgages, and that Webster claimed to be anxious to pay them. The “intimate relations between the families” had, no doubt, made him familiar with the possession and control W. L. Webster exercised over the premises, coupled with his claim of ownership of this large and valuable farm. He makes no denial of these facts. He occupies the novel position of a party who claims to be a dona fide purchaser, for $7,000, of this property, under no other claim of title than a tax deed not thirty days old, and which was only prima facie evidence of title, and the effect of which might, and most probably could, be readily destroyed. It has been thought that a purchaser from the grantee in such a tax deed could not, as a matter of law, be esteemed a dona fide purchaser. Curtis v. Cisna, 7 Biss. 260. Wilkinson, with the facts before him, was charged with knowledge that the tax deed to Webster was fraudulent in law and in fact, for he could not but understand from these facts that Webster had procured the deed in violation of his manifest duty to have paid the taxes, and for the obvious purpose of cheating the plaintiff out of his mortgage debts. The evidence fairly leaves the case open to the inference that he was only a too willing instrument to enable Webster “to save something for Eva” (Wilkinson’s daughter) at the expense of the plaintiff’s rights, and that the encouragement he held out from time to time to the plaintiff that he might buy his mortgages, until Webster and himself had secured, or had within easy reach, this tax deed, was a part of a concerted plan between him and Webster to defeat the plaintiff’s mortgages. He has not parted with anything of material value, or with any claim that the evidence shows that he ever really expected to enforce. With the knowledge of the facts and circumstances which he had, it seems to have been a very reprehensible scheme. He had, at least, knowledge of the plaintiff’s rights, and of facts and circumstances showing that the tax deed was fraudulent as against those rights.

The judgment appealed from must be construed in connection with the pleadings, and it is clear from it that the tax deed and conveyance to Wilkinson are canceled and set aside, and are hereafter to have no effect, so far as the plaintiff’s rights under his said mortgages are concerned. This is the full scope and effect of the judgment.

This view of the case renders it unnecessary to consider whether the tax deed was void for want of proper proof of posting notices of the tax sale, and requires that the judgment of the circuit court be affirmed.

By the Court.— The judgment of the circuit court is affirmed.