Randall v. Dailey , 66 Wis. 285 ( 1886 )

OetoN, J.

This action was brought under sec. 1197, B. S., which authorizes the grantee of a tax deed to commence an action against the owner or owners of the land at the time of the tax sale for the purpose of barring such owner or owners, and those claiming under them, of all right, title, interest, or claim in such land. The defendant answered that he was the owner of the land in fee, and is, and has been for many years, in possession thereof, and paid the taxes on said land for the year for which it was sold, and before the sale; and prayed that the said tax deed be declared null and void, and the land discharged therefrom. The circuit court found all the issues in favor of the defendant, and rendered judgment according to the prayer, from which this appeal is taken. The tax sale was made on the 13th day of May, 1879, for the taxes of 1878, and the tax deed was issued July 24,1882. There was evidence offered, and objected to, in respect to the defendant’s title to the land.

The complaint is defective in not alleging that the defendant was the owner. The plaintiff assumes and admits that he was the owner by bringing the action against him, for the statute authorizes such an action to be brought only against the owner or owners. The complaint does not allege that he was the owner, or even claimed the land.

The land was wild and uncultivated, but the defendant had always paid the taxes. It seems that the defendant went to the county treasurer’s office on the 9th day of May, 1879, the day before the sale, and asked a person who was acting as clerk in the office the amount -of the taxes on said land, and the amount was stated to be $14.21, and he paid it, and such person gave him a receipt therefor in full for delinquent taxes on the land for the year 1878, with interest and subsequent costs and charges, and signed it by using a facsimile stamp of the name of the county treasurer. The county treasurer testified that such person acted under his directions in receiving said taxes, and their payment appeared on the stub of the receipt-book in his office, and that the land was sold by mistake.- The receipt was not countersigned by the county clerk. ¥e think that there was sufficient evidence of authority in the clerk in the office to receive said taxes as he did, and that his act was assumed and ratified by the county treasurer himself. The informality or defect in the receipt cannot affect the rights of the defendant.

There was some evidence tending to show that the clerk did not receive a sufficient amount to cover all the charges, and that the defendant ought to have paid twenty-five cents more. The receipt having been that of the treasurer, and the clerk having had sufficient authority to act for him in receiving the money, the defendant had a right to rely upon .the correctness of the amount given him by such clerk. The mistake of the officer in such a matter ought - not to prejudice the owner of the land, who pays all that he states, from his books and records, is .required to be paid, and will not. Wakefield v. Rotherham, 25 N. W. Rep. 697. Besides, this is too trifling and small a sum to be regarded in deciding upon the legality of the payment in full of the taxes for which the land was afterwards sold. Kelley v. Corson, 8 Wis. 182. The special exceptions found in the record are unimportant in such a case. The evidence that was clearly competent showed conclusively that the taxes for which the land was sold had been duly and lawfully paid by the defendant, as the owner of it, before such sale. The plaintiff’s tax deed was therefore void, and was properly declared so.

■ By the Court.— The judgment of the circuit court is affirmed.