Menasha Wooden Ware Co. v. Harmon

Best evidence: Letter-press copies: Tax titles: Attempt to redeem,:Error of county clerk: Constructive redemption. 1. Original letters and letter-press copies' thereof are not regarded as duplicates, and such copies are not admissible in evidence where it is not shown that the originals are not in existence or cannot be produced, even though it appears that they were written to a third person and are not in the possession or under the immediate control of the party offering the copies. 2. Where the failure to redeem lands from a certain tax sale was as much due to the fault and neglect of the redemptioners in failing to call the attention of the county clerk to such sale as it was to the fault of the clerk in omitting that sale from his statement of the amount required to redeem, it was error to hold that there had been a constructive redemption from that sale.

Appeal from a judgment of the circuit court for Langlade county: John Goodland, Circuit Judge. Action in equity to quiet plaintiff’s-title to the southeast quarter of section 10, township 83, range 13. The land, now in Langlade county, was formerly included in Oconto, and thereafter in Shawano, county. The complaint alleges that the plaintiff is a-duly organized corporation of this state and is the owner in fee simple of this land, and that defendant claims to own an interest therein adverse to the plaintiff, and prays judgment that its title be established.against any claim of the defendant, and that he and those claiming under him be barred from having or ever claiming any right or interest in the land adverse to plaintiff, and that he be directed to release all claim' to the same. Defendant denies that the plaintiff is the owner of the land as averred, and alleges that he owns it in fee through conveyances forming a complete chain of title, beginning with the patent title. He also alleges that plaintiff’s title is based on certain tax deeds, and that the land was redeemed from the tax'sales upon which such deeds were issued, and he demands judgment establishing his title against the claim of plaintiff, and that it be barred from having or claiming any right or title to the land adverse to him, and that it release all claim thereto. The court tried the action and found that on the 4th day of April, 1881, G. W. Washburn was the owner of the land, and that he and his wife, Sarah P. Washburn, on that day, in consideration of love and affection, and as a gift, conveyed these premises and other lands to their daughter, Clara W. Morgan, in trust for the use and benefit of her children, Mary and Pranklin B. .Morgan, horn, respectively, December 27, 1877, and December 20, 1880, and that this trustee and her children conveyed this land to the defendant October 21, 1903, to secure him for money advanced to redeem it from outstanding taxes, tax certificates, and tax deeds. It appears that the land had been sold for delinquent taxes for nearly all of the years from 1878 to 1899, the year wherein redemption was made for Mary Morgan. The evidence shows that G. W. Washburn acted for the trustee and beneficiaries under the trust deed. He was the original owner of the land, and had knowledge that the taxes levied after 1876 and prior to the date of the trust deed (April 4, 1881) had not been paid by him or any one on behalf of the trustee and 'the beneficiaries, and he had good grounds for apprehending that no one had paid the taxes levied upon the land after the delivery of this trust deed and up to the year 1899, when he, as agent of the trustee and beneficiaries, took steps to redeem from all tax sales. There was no actual redemption from the sale of 1880 as to the'land in question. The court found that the failure to redeem from the sale of 1880 was due to the omission of the county clerk to include it in the statement he furnished in response to Mr. Washburn’s letters asking for the amount which would be required to redeem this and other lands in 1899 and 1902. It is shown that Mr. Washburn had personal knowledge that no taxes had been paid on this land since 1876; that before asking for this statement from the county clerk in November, 1899, he had secured an abstract of 'title which contained a reference to the tax deed under which plaintiff acquired its title; that he did not examine the elerk’s statement to ascertain what descriptions it covered and for what years the taxes were included; and that he did not compare the contents of the statement with the abstract to ascertain if all the delinquent taxes shown by the abstract were included. He concedes that he did not compare the ■clerk’s statement or the redemption receipts with the abstract ■to ascertain whether all descriptions and sales were included. It seems that the clerk’s omission was due to a change in the office practice, the clerk no longer referring to the original book entries showing sales for delinquent taxes to ascertain the years and amounts for which lands were sold, but using a “tax abstract” compiled in the clerk’s office and including no sales prior to 1883.' The original books showing the sale of 1880 were, however, readily accessible, and the entries of such sales were easily found by the clerk when called for. Mr. Washburn did not call the elerk’s attention directly to the fact that he wished to redeem from the sale of 1880 when he called for a statement of the amounts due or when he remitted the taxes and charges pursuant to such statement. The court held that there was a constructive redemption, and that' plaintiff had no title or interest in the premises, and •awarded judgment establishing defendant’s title and for costs. This is an appeal from such judgment.' They argued, among other things, that the failure to redeem from ■the sale of 1880 was due to the negligence of the redemption-ers and not to the exclusive fault of the county clerk. In all ■of the Wisconsin cases where a constructive redemption or payment has been upheld, the landowner, in applying to the public’officer, bas specified the year which he wished to pay the tax for or redeem from. Randall v. Dailey, 66 Wis.. 285; Gould v. Sullivan, 84 Wis. 659; Nelson v. Churchill,. Í17 Wis. 10, 18. If the landowner knows of a sale which the officer has overlooked and fails to apprise him of it, he-cannot claim the benefit of the rule. His own negligence will defeat him. Bastón v. Doolittle, 100 Iowa, 374; Noble v. Bullís, 23 Iowa, 559; Bray & Choate L. Co. v. Newman, 92' Wis. 271, 276; Cooley, Taxation (2d ed.) 540, 541; Lamb v.. Irwin, 69 Pa. St. 436, 443; Harrison v. Owens, 57 Iowa, 314. They contended, inter alia, that there was a constructive redemption from the sale of 1880. Washburn in behalf of the minors sent more money than necessary to redeem from this sale and deed to the county clerk of Shawano county. The excess, $33.13, the clerk returned to Washburn, stating that he had made redemption from sales of 1884 and 1885, which were the only sales of these lands in Shawano county. See Loomis v. Pingree, 43 Me. 299; Hand v. Auditor-General, 112 Mich. 597, 71 N. W. 16.0; Wood v. Bige-low, 115 Mich. 123, 73 N. W. 129; Hough v. Auditor-General, 116 Mich. 663, 74 N. W. 1045; Kneeland v. Hyman, 118 Mich. 56, 76 N. W. 127; Hoffman v. Auditor-General, 136 Mich. 689, 100 N. W. 180; Tacey v. Irwin, 18 Wall.. 549 ; Merton v. Dolphin, 28 Wis. 456; Bubb v. Tomplcins, 47 Pa. St. 359; Dietrich v. Mason, 57 Pa. St. 40; Gould v. SuL livan, 84 Wis. 659; Randall v. Dailey, 66 Wis. 285; People-ex rel. Cooper v. Registrar, 114 N. T. 19; Hintrager v. Ma-honey, 78 Iowa, 537; Pottsville L. Co-, v. Wells, 157 Pa. St. 5; Lewis v. Monson, 151 U. S. 545; Nelson v. Churchill, 117 Wis. 10; Cooley, Taxation (2ded.) 367; Gage v. Scales, 100 Ill. 218; Martin v. Barbour, 34 Fed. 701.