Pier v. Oneida County

67 N.W. 702, 93 Wis. 463, 1896 Wisc. LEXIS 58

• Court: Wisconsin Supreme Court
• Decided: May 22, 1896
• Status: Published

Opinion

"Westslow, J.

There can be no doubt but that the tax certificates which the plaintiff held were invalid on account of the irregularities in the tax-sale proceedings which are set forth in the statement of facts. Ward v. Walters, 63 Wis. 39, and cases cited. The tax certificates being invalid, it was the ■duty of the county board, under the statute, to order the repayment of the amount paid for them by the plaintiff, when she surrendered them for cancellation. R. S. sec. 1184; Norton v. Rock Co. 13 Wis. 611. The plaintiff’s claim was clearly a cause of action upon which the only relief demand-able was a judgment for money. Hence, it was a claim which must first be presented to the county board for allowance, as was done by the plaintiff in the present case. R. S. sec. 676; Wright v. Merrimack, 52 Wis. 466. Being a claim which must be presented to the county board, and the board ■having disallowed it, the plaintiff’s only remedy was by appeal from the disallowance. R. S. secs. 682, 683.

It is argued that the word “ invalid,” as used in sec. 1184, R. S., should be construed as meaning a tax sale which is void for reasons affecting the groundwork of the tax, and ■not a case where there are merely irregularities in the sale. In support of this contention it is truly said that, in cases of mere irregularity like the present, the holder of the certificate is amply protected from all loss, and that the original landowner can only defeat the tax title upon payment of the money which it cost with a high rate of interest. Erom this fact it is argued that the holder of the certificate ought not to recover anything of the county, because he will, in any event, get his money back. The contention cannot prevail. The reason of the refunding of the money by the county is that the holder of the certificate contracts for a good title to land, and when it is shown that this has failed he is entitled to have his money refunded. He has not received what he contracted for. The provision for the return by the county of moneys paid upon invalid tax sales, which now appears as sec. 1184, R. S., first appeared as secs. 110, 111, ch. 15, R. S. 1849, and reappeared as secs. 26, 27, ch. 22, Laws of 1859. This last-named chapter also contained ample provisions requiring the original owner, as a condition of relief from a tax sale which was invalid on account of mere irregularities, to deposit for the use of the tax-title claimant the amount paid by him with interest. Sec. 38 of said ch. 22. These provisions have existed side by side ever since that time, with changes not affecting their substantial character, and during that time the right of recovery against the county in cases like the present has been more than once upheld; and in one case (Barden v. Columbia Co. 83 Wis. 445) the very argument here made by the appellant was strongly urged and overruled.

By the Court.— Judgment affirmed.