Mitchell v. Pillsbury , 5 Wis. 407 ( 1856 )

By the Court,

WhitoN, C. J.

We think that tbe nonsuit in this case was wrongly ordered.

There can be no doubt, we suppose, that if there was a tax lawfully assessed upon tbe land .at the time of tbe conveyance, which the- covenantee was obliged to pay, in order to prevent a sale of tbe laud, or to redeem it after a sale bad taken place, and which be bad actually paid, tbe .covenant. against incumbrances was broken.

Indeed, this does not appear to be disputed by tbe counsel for tbe defendant in error; tbe only question being, whether there was,, in fact, such a tax lawfully existing.

■ To establish tbe affirmative of this proposition, tbe plaintiff in error offered in evidence tbe assessment roll of the city of Ea-cine, for tbe year 1854, with tbe certificate or affidavit of tbe assessor.

To the introduction of this evidence, tbe. defendant in error objected, for the reason: 1st. Because the land conveyed in the deed was not described in the assessment roll, and, 2d. Because the return of the assessor was not in accordance with the charter of the city of Racine.

The judge overruled the first objection, but sustained the second. We think the judge was clearly right in overruling the first objection. The description of the land in the assessment roll is different from the description contained in the deed; but it is quite apparent that the same lapd is described in each. Id cerium est, quod cerium reddi potest.

But we are of the opinion that the judge erred in rejecting the evidence offered for the alleged reason that the certificate or affidavit of 'the assessor was not in accordance with the statute-of the state. The charter of the city of Racine (Sess. L. 1848, p. 81, § 16), provided for an assessor for each ward, while section 38 provided that the assessment roll should be returned to the clerk in the month of May, with an affidavit of the assessor that the assessment roil comprised all the real and personal property liable to taxation in the ward for which he was elected.

The Revised Statutes which went into effect in 1850, provide {chap. 15, § 33) that assessors shall attach a certificate to the assessment roll, like the certificate or affidavit which was attached to the assessment roll which was offered in evidence in this case. The session laws of 1851 {chap. 128, § 11) provide that there shall be but one assessor for the city of Racine, and that his duties shall be the same as provided for in the act incorporating the city; and as town assessors have, except that it shall be his duty to assess all the taxable property in said city, and complete his assessment roll during the months of May and June of each year, and deliver the same to the clerk. The act last above referred to, contains other provisions relating to the duty of the assessor of the city, but they do not appear to relate to the matters involved in the decision of the judge.

It is contended by the counsel for the plaintiff in error, that the act of 1851, before referred to, provides that the duty of the assessor in regard to the certificate, shall be the same as that of town assessors as fixed in tbe clause of tbe Revised Statutes, to wbicb we bave referred, or if tbis is not tbe case, tbat by mating oatb to tbe certificate, tbe assessor substantially complied with tbe requirements of tbe original charter, and also with tbe Revised Statutes. It will be seen that a literal compliance with tbe provisions óf tbe Revised Statutes in relation to tbe duty bf town assessors, and'with tbe provision contained in tbe original charter of tbe city in relation to tbe city assessors, is impossible, unless, indeed, tbe assessor should make tbe affidavit as required by tbe charter, and a certificate, as'town assessors are required to do by tbe Revised Statutes; and we cannot suppose tbat it was tbe intention of tbe legislature to impose this duty upon him. We are inclined to think tbat it was tbe intention of tbe legislature to assimilate the duty of tbe city assessor to tbat of tbe town assessors as near as possible, so as to bave tbe duties of these officers uniform. Tbe certificate wbicb was offered in tbis case was therefore tbe one which'it was tbe duty of tbe assessor to make, and should have been so held by tbe circuit judge. Tbe fact tbat tbe assessor made oatb to it, cannot bave changed its character. It was still a certificate, and should bave been so regarded.

It follows tbat judgment of’ tbe Circuit Court must be reversed.

.Judgment reversed, with costs.