Mitchell v. Pillsbury

ERROR TO RACINE CIRCUIT COURT. A tax lawfully assessed upon land conveyed by deed, at the time of conveyance, which, the covenantee was obliged to pay in order to prevent a sale of the land, or to redeem it after a sale had taken place, and which he had actually paid, constitutes a breach of a covenant against incumbrances. A tax, to be an incumbrance, such as would constitute a breach of a covenant against incumbrances, must be a lawful tax, legally levied, upon a lawful assessment. * In an action of covenant against incumbrances, where the breach is assigned upon an outstanding tax, or tax and sale therefor, a variance between the description of the premises contained in the deed, and that contained in the assessment roll, is immaterial, provided the same land is adequately and particularly described in each, though by different words. Chapter 12S, section 11, providing for one assessor for the city of Racine, instead of five, one for each of the five wards, as required by the original charter, was intended to assimilate the duty of the assessor, as nearly as possible, to that of the town assessors, and to have their duties uniform, in regard to the certificate attached to their return; and a certificate made by him in the form of that required of the town assessors (in other respects answering to the charter) is sufficient, and such as is required by law. The making oath to such a certificate, when nio oath is required by law, does not vitiate it, provided it be in other respects sufficient.

This case was an action of covenant against incumbrances, originally brought before a justice of tbe peace, by tbe plaintiff in error against tbe defendant in error, and appealed to tbe Circuit Court. At tbe October term, A. D. 1855, tbe plaintiff obtained judgment, wbicb was reversed on error at tbe last June term of tbis court, and tbe cause was remanded for further proceedings. At tbe October term, 1856, of tbe Eacine circuit, tbe cause came on again for trial upon new pleadings filed by leave of tbe court. Tbe declaration was in covenant upon a deed executed by tbe defendant to tbe plaintiff, June 11, 1855. The breach assigned was upon a covenant against incumbrances, and consisted in tbe non-payment of certain taxes levied on tbe premises in tbe year 1854. Tbe plea was, non infregit conventionem. Tbe cause was tried by tbe court, a jury having been waived. To maintain tbe issue on bis part, tbe plaintiff gave in evidence a deed executed by tbe defendant and wife to tbe plaintiff, June 11, 1855, conveying certain premises described therein as follows: “ All those certain pieces or parcels of land situate in tbe city and county of Racine, and state of Wisconsin, known, and described as follows, to wit: Tbe west third of tbe east half, and tbe east third of lot No. 2, in block No. 18, according to tbe original plat of the village (now city) of Racine, made by Moses Yilas, surveyor, and recorded in tbe office of register of deeds of tbe county of Racine.” And in and by tbe said deed the defendant covenanted, that at tbe time of tbe delivery thereof be was well seized of tbe premises of an indefeasible estate of inheritance, in fee simple; that tbe same were free and clear from all liens and incumbran-ces whatever, except a mortgage for tbe sum of three hundred dollars, executed by Thomas Wright and wife, March 28, 1853, to Julia Ann Smith, and also except a certain other mortgage executed by tbe defendant to James H. Hinds, administrator, foi tbe sum of one thousand dollars; also a covenant for quiet enjoyment, &c. The plaintiff then offered in evidence tbe original village or city plat, to show tbe width of lot 2' in block 18 from north to south, which was objected to, but tbe objection was overruled and tbe evidence admitted, from which it appeared that said lot 2 is 60 feet in width from north to south, and 120 feet from east to west. Tbe plaintiff next offered in evidence tbe original assessment roll of the city of Racine for tbe year 1851, with tbe assessor’s return thereto, which was in words and figures following, to wit: “ Oity of Hacine, June 80, 1854. “ I do certify that I have set down in tbe' foregoing assessment roll all tbe real estate situated in tbe city of Eacine, liable to be taxed according to my best information, and that with tbe exception of those cases in which the value of the said real estate has been fixed by affidavit/ made pursuant to law, I have estimated the same, at what I believe to be the true cash value thereof; that the said assessment roll contains a true statement of the aggregate valuation of the taxable personal estate of each and every person named in said roll as nearly as I could ascertain the same, and excluding such stocks as are otherwise taxable. And that with the exception of those cases in which the value of such personal estate has been sworn to by the owner, possessor or agent, I have estimated the same at its true cash value, according to my best information and belief. “ W. Beswick, City Assessor. “ Subscribed and sworn before me this 30th day of June, A. D. 1854. . Isaac Harmok, Notary Public" And offered to read from said roll the following items which appeared therein: Kesident Owners. ¡W- | Lot | BTfc. T.Wrighfc’s Estate. J } East 1-2 j I j 18 “ « j (el-2n20fc j 2 J 18 Value of } Valuation of j Value of each Lot. | alllots. | Per. prop. $500 j 50 j To the reading of which the defendant objected. 1st, Because the description of the property proposed to be read is different from that described in the deed. 2d. Because the return of the assessor is not in accordance with the city charter and the law of the land. The circuit judge overruled the first objection, but sustained the second, and rejected the evidence, to which the plaintiff excepted. This evidence being essential to the plaintiff’s recovery, and no further evidence being offered, the court directed a judgment of nonsuit to be entered against tbe plaintiff. The plaintiff excepted to these several rulings in the court below, and thereon has brought the case in error to this court. The only point really in controversy, and presented for the consideration of this court, was the sufficiency of the return, or certificate of tbe assessor of tbe city of Eacine to tbe assessment roll of 1854. insisted that tbe return of tbe assessor was a substantial requirement with the statute, and be cited tbe several provisions relating to tbe subject. Charter of Racine City, Sess. Laws, June, 1848, p. 94, § 38 ; Sess. L. 1851, chap. 128, § 11; R. S. chap. 15, § 33. contended that tbe assessment of 1854 was illegal, and that, therefore, tbe tax based thereon, and alleged as an incumbrance upon tbe premises,' was no incumbrance; that tbe return of tbe assessor was, not in compliance with tbe statute; that it did not purport to contain all tbe taxable property of the city; that-the certificate was not in accordance with tbe charter, and though sworn to, was not an affidavit such as tbe charter required. He cited the same provisions of tbe statute as before referred to, and to which reference is made in tbe opinion of tbe court.