Burchard v. Roberts

Lyon, J.

This appeal presents two questions for determination. These are: (1) Was the action properly brought against John Roberts alone? (2) Was the purchase of the land in controversy by Yincent Eoberts at the tax sale of 1880, and the payment therefor of the amount of the taxes and charges due thereon, a payment of the taxes and a redemption of the land therefrom?

1. The statute relating to parties in actions of ejectment contains the following provisions: “ If the premises for which the action is brought are actually occupied by any person, such actual occupant shall be named defendant in the complaint; if they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto or some *116 interest therein, at the commencement of the action. The plaintiff may join as defendant any person claiming title to such premises, with any actual occupant thereof or of some part or parcel thereof, holding as tenant under such person so claiming title or otherwise. . . .” R. S. secs. 3075, 3076. Under these provisions, if Bowker, the grantor of the defendant, was in the actual possession of the land claimed in August, 1883, when this action was commenced, he should have been made a party defendant to the action. In such case the present defendant, John Roberts, under whom Bowker was in possession, if at all, is also a proper party defendant, although not in the actual possession of the land.

The circuit court found that Bowker was in the actual possession of the land until he took the tax deed thereof. This was June 22, 1883. Perhaps the coui't might also have properly found that he retained the possession thereof until he conveyed to the defendant, a few days later. But we find no satisfactory proof'that Bowker was in possession when this action was commenced in August following. When asked directly whether he had remained in possession of the land ever since he deeded to the defendant, he answered evasively, as follows: “ Since then he has told me that John Roberts owned the land; that I was to settle with him for this land; the rent of the land I have not paid for this last year; in fact I have not paid the interest on all the lands I own.” Indeed all the testimony on the subject of Bowker’s occupancy of the land after the conveyance to the defendant is very general, vague, and unsatisfactory.

It is quite obvious from the testimony that neither the Dotys nor Bowker ever resided upon the land, but only used it for farming purposes. We are left entirely in the dark as to the extent of that use, or, so far as Bowker is concerned, its continuity. A finding that Bowker ceased to occupy the land when he conveyed it to the defendant, *117 and that it was unoccupied when the action was brought, could not properly be disturbed. This is probably the meaning and significance of the finding that the defendant after such conveyance had “ the apparent and nominal possession ” of the land. In such case the action was properly brought against the defendant alone, for the taking of the tax deed was a claim of title to the land, which is sufficient under the statute (if the land be unoccupied) to support ejectment against the claimant. We reach this conclusion the more readily because we are satisfied, as the learned circuit judge evidently was, that the title and possession of the land were being manipulated by the two Eoberts, father and son, for the purpose of embarrassing and defeating the plaintiffs in their pending action in the federal court, and that Bowker was a pliant tool in their hands to aid in accomplishing such purpose. This was an unjustifiable interference with the course of justice by Bowker and the defendant, who were not parties to that action, and because they were acting in unison it would be strict justice to hold, in analogy to the law which makes a conspirator liable for the acts of his co-conspirators in furtherance of the object of the conspiracy, that the act of one, or the possession of one, intended by both to affect the plaintiffs unfavorably in their other suit, is the act or possession of the other as well.

We conclude that the action is well brought against the defendant alone. It is not determined whether, conceding that Bowker should have been made a party, the defendant ■ can, on the final hearing, and without having demurred for defect of parties, take advantage of such defect. Doubtless he might have applied to the court at the proper time for an order compelling the plaintiffs to bring in Bowker (if he was in possession) as a party defendant to the action, but he failed to do so.

2. In considering the second question above suggested, *118 as to whether the purchase of the land at the tax sale by Vincent Roberts, and the payment therefor of the amount of taxes and charges against it, operate as a payment of the taxes, Oottrill and the other beneficiaries in the trust deed for whose benefit the purchase was made will be regarded as the purchasers. Obviously, such was the legal effect of the transaction. Such beneficiaries stood in the relation of mortgagees of the land. The execution of the trust deed may have had the effect of vesting the legal title to the land in their agent, Vincent Roberts, but such deed, and the defeasance ex'ecuted by such agent to Doty, operated to preserve the mortgage relation between them, changing the securities, perhaps, to equitable mortgages. Such change, however, does not seem material to the question under consideration.

The taxes of 1879 were assessed against Doty, who was then in possession of the land, claiming title thereto. Under the statute (R. S. sec. 1043) the tax was properly assessed against him and he was legally chargeable therewith. Had he purchased at the tax sale, there can be no doubt the transaction would have operated as a payment of the tax, although tax certificates may have been issued to him. Smith v. Lewis, 20 Wis. 350 ; Bassett v. Welch, 22 Wis. 175 ; Jones v. Davis, 24 Wis. 229 .

The question is whether the mortgagees of the land are in any better condition than Doty, the mortgagor, to acquire title thereto by purchasing at the tax sale and taking certificates of sale. We have been referred to no case decided by this court, and are not aware that there is any such case, in which it is held that a mortgagee may, in this state, cut off the mortgagor’s equity of redemption by acquiring title to the mortgaged land under a tax deed. True, several cases determined by this court are cited by the learned counsel for defendant as holding that a mortgagee may thus acquire adverse title, but an examination of those cases will *119 show that none of them so hold. They will be noticed briefly in their order.

In Wright v. Sperry, 21 Wis. 331 , 25 Wis. 617 , the plaintiff was grantee of the purchaser at a foreclosure sale on a mortgage executed by Sperry, the defendant, on the whole eighty acres of land. Sperry owned only an undivided interest in the land. After such sale he acquired the remaining undivided interest. In the mean time Wright obtained the interest conveyed by a tax deed of the whole. eighty acres issued on a tax sale for nonpayment of the taxes assessed upon the land before such foreclosure sale. Wright was not, therefore, a mortgagee of the land, but was claimed to be a tenant in common with Sperry, and the validity of his tax deed was contested on that ground. The tax deed was held valid, and hence under it Wright was entitled to recover such after-acquired interest of Sperry in the eighty acres in controversy.

Sturdevant v. Mather, 20 Wis. 576 , was an action to redeem from an equitable mortgage. The mortgagee had acquired the interest conveyed by two tax deeds of the mortgaged premises. Such deeds were held invalid for defective execution. The defendant, Mather, was the grantee of the mortgagee, and after taking such conveyance he also acquired several tax deeds of the same premises. It was held that, under the instrument giving the lien, the mortgagee had no estate in the premises which he could convey to Mather, and hence the latter was a stranger to the original title, and might assert title under his tax deeds to defeat the action.

Lybrand v. Haney, 31 Wis. 230 , presented no question as between mortgagor and mortgagee. ■ Neither did Link v. Doerfer, 42 Wis. 391 . The first of these cases decides that one in possession of land under a valid tax deed may maintain an action based upon other tax deeds to him issued on sale's for the nonpayment of taxes on the same land, which *120 he was under no obligation to pay, to foreclose the title and right of the original owner in and to such lands. In Link v. Doerfer, it was held that a mere intruder in possession of land without color or claim of title is capable of acquiring adverse title by tax deed or other conveyance to himself. . .

It is plain that none of the above cases sustain the proposition to which they are cited. On the contrary, we are satisfied on principle and authority, and especially in view of the statute which will presently be cited, that in the present case the purchase of the land at the tax sale for the mortgagees, and the taking pf tax certificates thereon, must be regarded as for the protection of the estate and the mutual benefit of the mortgagees and mortgagor. As. was said by DixoN, O. J., in Fisk v. Brunette, 30 Wis. 102 , such purchase and the taking of the certificates must be regarded as so much money advanced to the mortgagor on the faith of the security.

The above reference is to R. S. secs. 1158-1160. These sections, in effect, add the amount so paid for taxes by the mortgagee to the mortgage debt, and extend the security of the mortgage over it. These statutory provisions give the mortgagee an adequate remedy to reimburse himself for the taxes thus paid by him, and are inconsistent with the idea that he may cut off the mortgagor’s equity of redemption in the mortgaged premises by acquiring an adverse title thereto under tax proceedings.

Moreover, without regard to statutory provisions, there is high authority for thus holding on general principles of law. Judge Cooley, in his treatise on the law of Taxation, says: “ It cannot be said in such a case that either mortgagee or mortgagor is under no obligation to the government to pay the tax. On the contrary, the tax being one that purposely is made to override the lien of the one as well as the title of the other, it might well, as it seems *121 to us, be beld that neither mortgagor nor mortgagee was at liberty to neglect the payment as one step in bettering his condition at the expense of the other, but that the presumption of law should be that the party purchasing did so for the protection of his own interest merely. And so in general are the authorities.” Pages 503, 504, and cases cited in notes. This language of Judge Cooley is quoted approvingly in Mr. Freeman’s learned note to Blake v. Howe, 15 Am. Dec. 684 . This doctrine commends itself to our judgments as reasonable and just.

It must be held, therefore, that as to Doty the purchase of the land at the tax sale by Yincent Eoberts for the benefit of the mortgagees, operated as a payment of the tax and a redemption of the land therefrom.

It remains to be determined how the plaintiffs are affected by the transaction. Had the mortgagees, instead of purchasing the land at the sale and taking tax certificates, paid the taxes and taken a receipt therefor, there can be no doubt that such payment would have inured to the benefit of these plaintiffs, and no question of a tax lien on the land or tax title on account of such taxes could be raised against them. Holding, as we do, that the transaction above mentioned operated as a payment of the taxes, no good reason is perceived why the same result should not follow, although, instead of paying and- taking a receipt therefor, they bid off the land for the amount of the taxes, paid the same, and took certificates of sale. Ve are quite unable to see how these transactions can operate as a payment as to Doty while as to the other plaintiffs it is the acquiring of a title paramount to theirs.

There are, doubtless, cases elsewhere which hold the opposite doctrine. Whether these cases are based upon statutes differing from ours, or made in the absence of any statute on the subject, we shall not stop to determine. Our *122 duty is to construe our own statute, and thus settle the law in that behalf in this state.

It will be observed that the statute above cited (secs. 1158-1160) refers only to taxes. No mention is made of any other description of incumbrance which the original lien-holder may pay and extend his lien to cover such payment. Hence, if a mortgagee or other lienholder should, for the protection of his lien, purchase a paramount outstanding-mortgage or judgment, it is not here decided whether he may or may not acquire. an adverse title thereunder which will cut off the mortgagor’s equity of redemption in the mortgaged premises.

It follows that the tax deed to the defendant is void. That deed eliminated from the case, there can be no doubt of the plaintiffs’ right to recover. Certain acts of Charles Burchard, who sold the land in controversy to Doty, were proved tending to show an ihterference by him with the land and that he claimed to own it, but nothing appears which can operate to divest the plaintiffs of their legal title thereto.

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