Durbin v. Platto , 47 Wis. 484 ( 1879 )

Obton, J.

This is a proceeding to foreclose a tax certificate under section 1, ch. 181, Laws of 1872. This section provides for such foreclosure, “as in the case of a mortgage,” and “ that all the rules of law and practice relating to the foreclosure of mortgages by action, as to the persons necessary and proper to be made parties to such actions, the decree of sale and foreclosure therein, the rules of pleading and evidence therein, the right of the plaintiff to be subrogated to the benefit of all liens upon the premises,” etc., shall prevail.

These provisions sufficiently answer the point of no notice being alleged in the complaint; for the proceeding has to be commenced by summons, and other proper notices are to be given, if necessary to affect other parties, as in foreclosure; and in such a foreclosure the proceedings antecedent to the certificate of sale need not be set out, any more than the transactions of the parties antecedent to the mortgage, and which resulted in the giving of the mortgage, need to be set out in a complaint for the foreclosure of such mortgage.

This is the only law which authorizes the bringing of any action, either legal or equitable, to establish and enforce a tax certificate and obtain the legal title of the lands, and this remedy is “ in lieu of taking a tax deed,” and it is therefore unnecessary to allege that no proceedings at law for such purpose had been commenced, or that there is no adequate remedy at law.

The only question remaining is as to the constitutionality of the statute authorizing this proceeding. It is not perceived in what respect this statute affects unfavorably the rights of the owner of the lands. It extends the time of redemption, and admits of all possible defenses to the foreclosure by reason of any antecedent illegal proceedings in the assessment and taxation, and finally bars and forecloses the equity of redemption. It is contended that the statutory proceeding is liable to the same objection as the .proceeding to foreclose a street commissioner’s certificate under section 3, ch. 338 of the Local Laws of 1856, which is condemned in Smith v. Van Dyke and others, Adm’rs of Rogers, 17 Wis., 208. In that case there would have been two tax sales — one to the city, which had bid in the lands for the special assessment, and the other to the plaintiff under his decree, and these two antagonistic; and none of the reasons given in that case are applicable to this; and the same may be said of the subsequent case of Smith v. Luclington and others, id., 334. Here there is but one tax sale as such, and this proceeding, “ in lieu of taking a tax deed,” is a cumulative remedy to establish and enforce such tax sale, and foreclose the equity of redemption. "We think this statute is valid,- and the complaint sufficient'.

By the Court. — The order of the county court sustaining the demurrer to the complaint is reversed, with costs, and the cause remanded for further proceedings according to law.