Kimball v. Ballard , 19 Wis. 601 ( 1865 )

By the Court,

DowNER, J.

The complaint alleges that the county treasurer, at the time he made the sale of the land described in the complaint,' “ added to the taxes assessed against said land the interest due thereon and all of the costs for the advertising and sale of the same, and then added thereto five per cent, upon the total amount thereof, wilfully and without any right and authority of law.” The adding of the five per cent, is conceded to have been illegal, and he sold the land for the entire amount, including the five per cent., being an excess over lawful taxes of $3.47. Such sale was void. Lacy v. Davis, 4 Mich., 140; Kemper v. McClelland’s Lessee, 19 Ohio, 308; Mills v. Johnson, 17 Wis., 603; Hersey v. Supervisors of Mil. Co., 16 Wis., 185; Lefferts v. Supervisors of Calumet Co., (unreported.)

The tender of the amount of legal taxes and seven per cent, interest thereon, was sufficient to entitle the plaintiff to bring this suit to cancel the deed. The defendant contends he should have tendered twenty-five per cent, interest instead of seven. The authorities he cites do not warrant the conclusion he draws from them. They are cases where the sale was voidable only, and not void. The respondent insists that the tender was not equal to the amount the'clerk of the board of supervisors would have paid him on surrendering the deed for cancellation. There is no reason why it should be. If he had taken the amount tendered, the county would still have remained liable to him for the three dollars and forty-seven cents excess, and interest thereon.

The demurrer to the complaint should have been overruled; and the order of the court below sustaining it is reversed, with costs.