Siegel v. Supervisors of Outagamie County

26 Wis. 70

• Court: Wisconsin Supreme Court
• Decided: June 15, 1870
• Status: Published

Opinion

Cole, J.

The first objection taken by the demurrer to the complaint is, that there is a defect or misjoinder of parties defendant. It is said that the clerk was not a proper party to enjoin from giving a tax deed on a void tax certificate. But he is the officer authorized by law to execute the deed, and it would seem to be most necessary to restrain'him from the performance of that act. Shaylor likewise, the owner of the tax certificate, is vitally interested in the subject-matter of the suit. Por it is his tax certificate that the plaintiff asks may be declared void, and be delivered up to be cancelled. How could this relief be granted without making him a party to the action 1 Por these reasons we think it very evident that the first ground relied on in the demurrer is untenable. '

The second cause of demurrer is abandoned, or not urged here.

The third cause of demurrer is, that the complaint does not state facts sufficient to constitute a cause of action. The plaintiff alleges that he is the owner in fee, and now in possession, of the southwest quarter of the northwest quarter of section thirteen, etc. He states that he purchased this tract of John P. Siegel, who had been the owner thereof, in fee, since 1857, until the purchase by the plaintiff; and further, that this forty, together with the southeast quarter of the northwest quarter, was assessed to one Hubbard, who had no interest therein at the time of such assessment, nor subsequent thereto. It is alleged that Hubbard owned, at the time, the north half of this quarter section, a tract of land worth much more than the south half of the quarter section; and that the assessor, in affixing the value of the lands, “ carelessly, heedlessly, negligently, and without reasonable care, precaution and examination, affixed the value ” of the north eighty to the south eighty, and vice versa.

The same allegations are made in reference to the assessment of 1866. This court has decided that an assessment against one person, of lots owned by him, and of lots owned by others, as a single assessment, is void. State ex rel. Roe v. Williston, 20 Wis. 228; Crane v. The City of Janesville, id. 305; and Hamilton v. The City of Fond du Lac, ante, p. . According to these decisions, the assessments for 1865 and 1866, of the southwest quarter of the northwest quarter, with another forty owned by other persons, as a single assessment, rendered those assessments void.

But it is said that it no where appears in the complaint that the plaintiff was the owner of this land in the years 1865 and 1866. Suppose it does not, how does this affect the question whether the plaintiff is entitled to the relief asked in the complaint? He now owns the land, and is in possession of it; and if a tax deed is issued upon the certificate, it will surely constitute a cloud upon his title. It is not material, to the relief demanded, that it should appear that the plaintiff owned this land in the years 1865 and 1866, when these void assessments and sales were made. It is sufficient that he owned the land and was in possession at the time of the commencement of the action.

Again it is said, that conceding the assessments irregular, or even void, still the relief demanded ought not to be granted unless the tax assessed was inequitable and unjust. The plaintiff states in his complaint that he is ready and willing to pay the legal taxes upon his land for the years 1865 and 1866, and all legal costs, charges and interest thereon, and offers to pay them. We do not readily see how the court can determine, from the matters stated in the complaint, what amount of taxes and charges the plaintiff ought to pay for the years 1865 and 1866. If there is any way to ascertain this' amount, the plaintiff offers to pay it, regardless of the question whether he would be required to do so as a condition to the relief demanded. This is probably more than strict equity would require him to do.

By the Court. — The order overruling the demurrer is affirmed.