State ex rel. Roe v. Williston , 20 Wis. 228 ( 1865 )

The following opinion was filed at the June term, 1865.

Downer, J.

The writ of mandamus must be denied. The charter of the city of Janesville provides, in substance (see sec. 15, ch. 8, and sec. 3, ch. 7), that the assessors shall be governed by the provisions of law relating to assessors in towns in making out the assessment rolls, so far as they are not inconsistent with the charter. The assessor in towns was at the time of the assessment in question, and still is, required to set opposite to each tract of land in the assessment roll the name of the owner, if known-, if not known, tbe word ’■'■unknown.'” R. S. 1858, cb. 18, secs. 17 and 23 ; Laws of 1859, cb. 167, sec. 23 ; Laws of 1860, cb. 386, sec. 23. It appears that tbe ten acres mentioned in tbe petition of tbe relator belonged at tbe time of assessment in 1861, three and 18-100 acres to Mrs. Smith, and tbe remainder to Roe, tbe relator; that tbe husband of Mrs. Smith informed tbe assessor what portion of tbe ten acres was owned by bis wife, and what part was owned by Roe, pointing out to him tbe division line, and requesting him to assess tbe same, each part separately to its owner. He promised so to do, but failed to do it, and assessed tbe whole tract together, and put down on tbe roll tbe name of J. M. Smith as tbe owner of tbe whole. Blackwell on Tax Tit., page 175, says: “ When it is shi vn that tbe name of tbe original owner was known to tbe officer, and omitted, tbe list will be held invalid; because tbe statutes expressly declare that tbe name of tbe owner shall be inserted when it can be done. Where an entire tract of land is assessed to one who owns only a portion of it, tbe listing is illegal.” He cites Barker v. Blake, 36 Maine, 433; Proprietors of Cardigan v. Page, 6 N. H., 182; Nelson v. Pierce, id., 194; 1 Foster, 400; Merritt v. Thompson, 13 Ill., 716. We do not see why tbe assessment roll as to tbe ten acres, and all subsequent proceedings, are not void. It is true, there is in tbe charter provision that tbe deed, when once executed, shall be conclusive evidence of certain facts and prima facie evidence of others. Should we compel tbe execution of tbe deed, tbe purchaser might be protected, or at least be in abetter position than be is now. But courts refuse to exercise this high power to give strength and validity to a title which is clearly defective on tbe merits. The People v. The Mayor &c. of New York, 10 Wend., 393. The relator bolds a tax certificate on ten acres of land, of which be now owns six 72-100 acres, and did own it at tbe time of tbe assessment and sale, and on which be ought to have paid tbe taxes, axjd. be ought also to have seen that it was properly described in tbe assessment roll. He now demands a deed "of tbe whole ten acres, and refuses tbe redemption money paid by tbe owner of tbe smaller portion, and maintains that sbe eonld not, under tbe provisions of tbe city charter, redeem a part, but must redeem tbe whole ten acres, if any. He has neither a legal nor an equitable right to such a deed.

By the Court — Tbe motion for a peremptory writ of mandamus is denied, with costs against the relator.

A motion for a rehearing in this cause was denied at tbe January term, 1866.