Wisconsin Oak Lumber Co. v. Laursen

Cassoday, C. J.

1. It is claimed on tbe part of tbe defendant that tbe action is not maintainable because tbe lumber bad been taken for a tax. Tbe affidavit for tbe writ of re- *488 plevin stated, in the language of the statute, that the lumber had “not been taken for a tax, assessment or fine, pursuant to the statute,” etc. See. 2718, Stats. 1898. But such affidavit was not conclusive of the fact so stated. Koehler v. Dobberpuhl, 60 Wis. 256 , 18 N. W. 841 . It appears from the record that it was not taken for a tax levied against the plaintiff, but for a tax levied against Ered W. Upham. The corresponding section of the statute regulating actions of replevin in courts of justices of the peace is much stronger and declares that:

“Such action shall not be maintained for any property taken by virtue of any warrant for the collection of any tax in pursuance of any statute of this state.” Sec. 3732, Stats. 1898.

Nevertheless, it was held by this court long ago, in effect, that such statute was for the protection of the officer, and did not preclude such action against the purchaser of the property at a sale made under the tax warrant. Power v. Kindschi, 58 Wis. 539 , 17 N. W. 689 . In a later case the court went further and held that the section last named did “not apply to a case in which the property seized belonged to a person not in privity either with the owner of the property assessed or the person erroneously named as owner in the tax list.” C. C. Thompson L. Co. v. Hynes, 84 Wis. 353 , 54 N. W. 576 . We'must hold that the plaintiff was not precluded from maintaining the action merely because the property was seized by the officer as the property of Ered W. Upham against whom the tax warrant was issued.

2. Counsel for the plaintiff contends that the assessment in question was void because the logs out of which the lumber was manufactured were not assessed to the owner (the plaintiff in this action), but to Ered W. Upham, who had transferred all his right, title, and interest in the log's to the plaintiff May 6, 1901, a year before the assessment in question was made. It is certainly true that, except in cases not applicable *489 bere, and under the statute as it stood at the time of the assessment, personal property liable to taxation was required to “be assessed to the owner thereof.” Sec. 1044, Stats. 1898; ch. 229, Laws of 1899; Fond du Lac v. Estate of Otto, 113 Wis. 39, 43 , 88 N. W. 917. The assessment is merely to ascertain the value of the property; but the tax is levied against the owner and collected as a debt against him. Here the property was not assessed to the plaintiff in this action, who was the owner thereof at the time of the assessment, but to Ered W. Upham, the former owner of the property, who happened to be the president of this plaintiff; and he seems to have been treated as the owner of the property throughout all the proceedings. As indicated in the foregoing statement, the defense alleged in the answer and here relied upon is that the plaintiff is estopped by the conduct of its general manager, Eartell, in sole charge of the property throughout all of such proceedings. It is conceded that Bartell had general charge and control over all the logs and lumber in question at the time of such assessment in May, 1902, and that he had authority at that time and for the remainder of the tax year as to the scheduling of the property and its valuation; that he continued in such general charge and control down to the time of the commencement of this action; that he was present in the yard when the assessment was made; that he got the amount of the assessment from the assessor; that the assessor ashed him on one or two occasions when Mr. Upham would be there and he told him; that the assessor gave him a statement of this tax; that he got a statement of this tax once from the assessor’s books; that he went before the board of review to get the amount of the assessment'on the logs reduced; that the collector gave him a statement of the tax against Ered Upham; that he knew in January, 1903, that the tax stood against Ered Upham; that he knew that fact prior to the levy; that he repeatedly promised to pay the tax; that he was present in the yard when the town treasmer, accompanied by the *490 district attorney, levied upon the lumber; that tbe town treasurer then said to him, “If you will show me wbat piles you are going to ship I will not levy on them;” that Bartell then did show him the piles he was going to ship and the town treasurer levied upon other piles; that just before the sale Bartell made this statement to the town treasurer: “I represent the owners of this lumber, and I refuse to let you sell it, as the sale is illegal.” Other witnesses stated that he said: “Mr. Anderson, I forbid you this sale. It is illegal.” All agree, and it is conceded, .that Bartell made no claim on any of said occasions that the plaintiff was the owner of such lumber. There is other uncontradicted evidence to the effect that Bartell, so in charge of the lumber and necessarily knowing all about the transfer of the logs to the plaintiff and the ownership of the lumber, participated in the assessment of the property., in his attempt to have the amount of it reduced by the board of review, in his repeated attempts to get the collector to accept less than the amount of the tax levied, and, after failing in such attempts, in his repeated promises to pay the tax, in his pointing out the piles of lumber which were soon to be shipped, on the promise of the collector that he would levy upon other lumber, in his presence at the time of sale, without ever claiming or disclosing to the assessor, the board of review, or the collector that the property, or any part thereof, did not belong to Upham, or that it did belong to the plaintiff. There is no pretense that the defendant, who purchased at the tax sale, had any knowledge or information that the property did not belong to Upham or that it did belong to the plaintiff.

The question recurs whether the defense of estoppel was established by the evidence referred to. The general doctrine of estoppel is well understood. Thus, it was held by this court many years ago:

“An owner of property, who stands by and sees a third party selling it under claim of title, without asserting his own *491 title, or giving tbe purchaser any notice thereof, is estopped, as against such purchaser, from asserting it afterward.” Vilas v. Mason, 25 Wis. 310 . See McCord v. Hill, 117 Wis. 306, 314, 315 , 94 N. W. 65 , and cases there cited; Two Rivers Mfg. Co. v. Day, 102 Wis. 328 , 78 N. W. 440 .

In this last case the defendants applied to the plaintiff to fix a price upon certain lands, including the tract In suit, and the plaintiff disclaimed being the owner of that tract. Relying.upon such disclaimer the defendants purchased the tract from one B., who held a tax deed thereon; and it was held that the plaintiff was estopped by such disclaimer from asserting title as the original owner. In a Michigan case it was held: . '

“One cannot maintain assumpsit to recover back the amount paid by him in satisfaction of a tax which, as a member of the board of supervisors, he voted to impose without presenting objections to its levy that he knew of at the time.” Wood v. Norwood, 52 Mich. 32 , 17 N. W. 229 .

So it has been held in Illinois-:

“A taxpayer who attends an election called in a school district, and in person seconds a motion to raise money by borrowing and issuing bonds of the district, will be estopped from questioning the validity of what was done under the authority of those proceedings, . . . and he will not be allowed to dispute the legality of a tax levied to "pay the interest or principal of such bonds, when issued under the vote of such-meeting.” Thatcher v. People, 98 Ill. 632 .

So in Ohio it has been held that parties who have invoked proceedings under an unconstitutional statute, “and actively participated in such proceedings, from the signing of the petition to the making of the assessment for the improvement of a road, under the act, are estopped from enjoining the collection of an assessment for the payment of the costs incurred in the proceedings so invoked by them.” Mott v. Hubbard, 59 Ohio St. 199 , 53 N. E. 47 . In a case in Nebraska the plaintiff was the.manager of a corporation and listed and scheduled for taxation the property of the company as his individual prop *492 erty; and it was held, in effect; that be was estopped from claiming that tbe property so listed and scheduled was not bis ''individual property.

Of course, caution should be used in applying the doctrine <of estoppel to such tax proceedings. 2 Oooley, Taxation (3d ed.) 1514-1521, and cases there cited. But we are constrained to hold that the verdict was properly directed in favor ■of the defendant.- By the Oourt. — The judgment of the circuit court is affirmed.