Cady v. Henes , 151 Wis. 422 ( 1912 )

Siebecker, J.

The complaint alleges that on June 9, 1910, the defendant, by warranty deed, conveyed to the plaintiff, for a valuable consideration, certain real estate in the city of Milwaukee.

The deed contains this covenant respecting the premises: “that the same are free and clear from all incumbrances whatever,” subject to an agreement. The complaint alleges that at the time the premises were conveyed they were not free from incumbrances, but were subject to -a special assessment for street improvements for the year 1909, which was a legal and valid lien upon the premises at the time the conveyance was made and which was then due -and unpaid. It is also alleged that the price paid by the plaintiff included the value of the street improvement and that there was nothing in the appearance of the premises to warn the plaintiff that the improvements had been made recently. The plaintiff was compelled on January 31, 1911, to pay $261.30, to free the premises from the lien of the special assessment, and it is alleged that by reason thereof she was damaged in this sum. It is alleged that demand has been made by the plaintiff on the defendant and that defendant has refused to pay the sum. Judgment is demanded for the amount paid by the plaintiff, with interest and costs of the action.

The allegations of the complaint are that this amount was “duly and legally levied under and pursuant to the provisions of the charter of the city of Milwaukee, as special improvement tax, and was, at the time of the sale of this property to the plaintiff, a legal and valid subsisting lien upon the real estate conveyed by the defendant to the plaintiff, and was then remaining due and unpaid, and was, at the time of the delivery of said deed, a lien and incumbrance by law upon said premises.” Tbe allegations of tbe complaint must be liberally construed. In tbe light of tbis rule, we deem tbe allegations sufficiently broad and definite to state a good cause of action for recovery of damages for tbe breach of tbe covenant against incumbrances.

Respondent concedes that tbe special assessments for street improvements are taxes, but maintains that they are not a lien on property until properly assessed and levied and until certificates have been issued therefor as provided by law. Sec. 13, cb. VII, of tbe charter of tbe city of Milwaukee provides that, when street improvements have been completed, a certificate shall issue to tbe contractor, signed by tbe board of public works and countersigned by tbe city comptroller, stating tbe amount chargeable to tbe lots described therein, which certificate may be paid by tbe owner of tbe land to tbe city treasurer, for tbe benefit of tbe certificate bolder, at any time before tbe sale of such land for tbe nonpayment of taxes. Sec. 13a of tbis chapter of tbe charter provides, if such amount is not paid by tbe lotowner to tbe city treasurer before tbe time for making out tbe annual tax list, then tbe amount shall be assessed against tbe land and be collected as other taxes on real estate. It is also provided that all certificates issued pursuant to tbe charter provisions “shall be liens upon- tbe lots or parcels of land against which tbe same shall respectively be chargeable, from and after tbe time when such certificates shall be countersigned and registered by tbe city comptroller.” It is manifest from these provisions that tbe alleged special assessment became a lien on tbe land from tbe time tbe certificate issued pursuant to these provisions of tbe charter.

It is argued that tbe complaint fails to allege facts showing that these steps were taken so as to charge tbe lands conveyed for tbe cost of tbe assessment as a tax. We are of opinion that the language of the complaint sufficiently alleges these matters to permit the introduction of evidence showing that all the requirements, prescribed in the charter to charge this land with the cost of the street improvement were complied with, and that they constituted a lien prior to January 1, 1910. If, then, the allegations of the complaint are sustained by evidence upon the trial of the case showing that a lien for taxes on the land conveyed was existent before January 1, 1910, then the covenant in the deed against incumbrances would be breached, and the plaintiff would be entitled to recover the amount she was compelled to pay to free the land from such tax lien. See sec. 1153, Stats., as amended by ch. 293, Laws of 1909, and Mitchell v. Pillsbury, 5 Wis. 407; Peters v. Meyers, 22 Wis. 602.

The allegations of the complaint state facts sufficient to constitute a cause of action.

By the Qourb. — The order appealed from is reversed, and the cause remanded to the trial'court with directions to enter an order overruling the demurrer to the complaint, and for further proceedings according to law.