Opinion
January 11, 1962 —
February 6, 1962.
APPEAL from an order of the circuit court for Adams county: RUSSELL E. HANSON, Circuit Judge. Affirmed.
For the appellants there was a brief by Rogers Owens Portage, and oral argument by Harlan B. Rogers.
For the respondents there was a brief and oral argument by R. E. Gieringer, district attorney, and Donald L. Hollman, special counsel.
An action by the plaintiffs, Charles J. Hayes III, Mary Ann V. Hayes, and Mary Norlock, against the defendants to cancel and set aside two tax deeds conveying certain real estate to Adams county, one dated December 12, 1958, and recorded in the office of the register of deeds for Adams county on December 15, 1958, in Vol. 108 of Deeds, page 267, and a tax deed conveying another parcel of real estate to Adams county on May 19, 1959. Both deeds were delivered pursuant to a tax sale held on October 19, 1954.
Adams county sold and quitclaimed the real estate described in the deed recorded in Vol. 108 of Deeds, page 267, to George H. Zebell and Adelyne R. Zebell, his wife, on August 18, 1959. This deed was recorded in Vol. 125 of Deeds, page 207.
The complaint alleges that the Hayeses failed and neglected to pay taxes on the real estate for the year 1954, and that Mary Ann V. Hayes on August 6, 1958, tendered to the county treasurer of Adams county a sum sufficient to redeem the outstanding taxes for such year, but the treasurer by mistake accepted that sum and applied it to the taxes for 1957, which were then due and payable, and issued a receipt therefor; that the plaintiffs Hayeses did not discover the error in the application of the tax payment until they received a notice of application for the issuance of a tax deed for a portion of the premises upon which there was a tax delinquency; that they notified the officers of the county that the money had been paid, but inadvertently applied to the wrong tax obligation; that no notice of the tax sales or the application for the issuance of the tax deeds on the lands covered by the tax deeds was ever received or served upon Mary Norlock who held a mortgage upon the premises. That on August 6, 1959, plaintiff, through his attorney, filed a petition with the county clerk of Adams county directed to the county board requesting the cancellation of the deeds and an opportunity to redeem the property from the lien of taxes. The petition was denied. The complaint further alleges unjust enrichment on the part of Adams county.
The defendant Adams county filed an answer in which it alleged that Hayeses had failed and neglected to pay the taxes on the premises for the years 1953, 1954, 1955, and 1956; and specifically denied the tender of the amount alleged in the complaint. It also denied that the treasurer had made a mistake in allocating the payment made on August 6, 1958, by the Hayeses and that the treasurer was directed to apply the amount paid to the 1957 taxes which were due and payable. The answer further sets forth that notice of tax sale or application of tax deed to the real estate in question was served by defendant upon Mary Norlock by registered mail with return address of the addressee; that a return receipt was delivered by the United States postal service on April 30, 1958, and the receipt was signed by Mary Norlock personally. The answer sets up a general denial of the facts contained in the complaint.
An answer and cross complaint were served by George H. and Adelyne R. Zebell setting forth nonpayment of taxes, and setting forth a general denial as to the facts contained in the complaint. In their cross complaint against the codefendant, Adams county, the Zebells set forth that they were ignorant of the irregularities alleged in the complaint, and that they were innocent purchasers in good faith from Adams county and, in reliance on good title from Adams county, they made improvements and incurred expenditures and set forth that in the event that the deed was set aside by the court they would be damaged in the amount $3,991.68, of which $3,660 was the purchase price.
Adams county in its answer to the cross complaint sets forth the fact that it issued a quitclaim deed to the codefendants, Zebells; that it did not guarantee the title and that the title was merchantable.
The plaintiffs upon the pleadings moved for summary judgment and in support of their motion filed an affidavit, together with documentary evidence consisting of copies of resolutions of the county board, together with a copy the petition addressed to the county board of Adams county and signed by Charles J. Hayes to permit the redemption of the premises from all past due taxes, interest, and costs, and set aside the tax deeds. The defendants did not file a counteraffidavit.
The trial court denied the motion for summary judgment and set the case for trial upon the issues of fact therein. The plaintiffs appeal from this order.
The only issue on this appeal is whether the pleadings and supporting affidavit of the plaintiffs set forth sufficient evidentiary facts, including copies of documentary evidence, so as to entitle the plaintiffs to summary judgment.
The rule is: There must be no unresolved material issues of fact existing in the record. If there are, or if inferences must be drawn from the facts either to support or deny the application of the propositions of law advanced, this court cannot grant summary judgment. It is not the function of this court to resolve material questions of fact or to draw inferences which may be doubtful or uncertain, but to determine if such questions of fact exist. Zezblatt v. Sampson (1961), 12 Wis.2d 303, 107 N.W.2d 122, and Voysey v. Labisky (1960), 10 Wis.2d 274, 103 N.W.2d 9.
The following facts are related from the record: The plaintiffs, Charles J. and Mary Ann V. Hayes, acquired title to a farm located in Adams county in 1945. They executed a real-estate mortgage to one Mary Norlock, the coplaintiff, in 1956. The plaintiffs did not pay the real-estate taxes on the land in question for the years 1953, 1954, 1955, and 1956.
In 1938, Adams county adopted the following resolution incorporating the provisions of sec. 74.44, Stats. 1937.
"Be it resolved, by the county board of supervisors of Adams county, Wisconsin, that the county treasurer of Adams county, Wisconsin, be and he is hereby authorized, empowered, and directed, for and in the name of the county, to bid in and become the exclusive purchaser of all lands sold for taxes, for the amount of taxes, interest, and charges remaining unpaid thereon.
"Be it further resolved, that all laws relating to the sale or purchase of lands sold for the nonpayment of such taxes, and to the redemption of such lands, shall apply and be deemed to relate to the sale or purchase of such lands by the county.
"Be it further resolved, that the said county treasurer, be and hereby is authorized and empowered to sell, transfer, or assign any of such certificates so acquired or purchased by the said county, to the owner or owners of any of such real estate and to any mortgagee or lienholder on any such lands or to any heir, legatee, devisee, executor, or administrator, having an estate or interest therein; proof of such interest and title shall be furnished by said applicant or purchaser and filed in the office of such county treasurer in the form of an affidavit fully setting up and showing their title or interest.
"Be it further resolved, that any ordinance or parts of any ordinance or resolution inconsistent herewith, be and the same is hereby repealed.
"Be it further resolved, that this ordinance and resolution shall be and become effective immediately upon its passage and adoption."
Pursuant to the 1938 resolution Adams county purchased all tax certificates issued with respect to the real estate in question. The first certificate, for the year 1954, stated that Adams county would be entitled to a deed of conveyance of said real estate three years from date (October 19, 1954).
Notice was given to the plaintiffs, Charles J. and Mary Ann V. Hayes, on April 25, 1958, and to the Grand Marsh State Bank, which bank had a paid-up mortgage which was still of record. On April 30, 1958, notice was given to Mary Norlock, the coplaintiff. The notices contained a legal description of the real estate, the amount of taxes due, the interest and charges, and stated that in three months a tax deed would be applied for.
On or about August 6, 1958, Mary Ann V. Hayes paid the county treasurer $117.13, which amount was applied to the payment of taxes for the current year of 1957. Subsequently, on November 3, 1958, the county clerk wrote the plaintiffs a letter informing them that unless the taxes for 1953 and thereafter were paid, a tax deed would be taken on the farm.
On December 12, 1958, Adams county took a tax deed on a portion of the real estate and subsequently, on May 19, 1959, a tax deed was issued for the remainder of the real estate for all delinquent taxes due. Then, pursuant to the 1947 resolution of the Adams county board of supervisors, the town board appraised the real estate. The real estate was noticed for sale, sealed bids taken and accepted, and sold to the highest bidders, George and Adelyne Zebell. The plaintiffs on August 6, 1959, petitioned Adams county to set aside the tax deeds, including the real estate sold to Zebells, and permit them to redeem the land by paying delinquent taxes. On August 18, 1959, Adams county quitclaimed the real estate to George and Adelyne Zebell.
"Mr. Banovec moves that the town supervisors and the supervisors of Friendship and Adams city act as appraisers for county-owned land as it becomes salable. Said land to be located in their respective towns, cities, and villages. Further, said appraisers are to furnish the land description and the appraised value to either the county clerk or county treasurer. Motion seconded and carried."
On September 1, 1959, the county clerk read the petition to the county board and the board of supervisors placed the petition of the plaintiff, Charles Hayes, on file and took no action for the reason that the real estate had been sold and Adams county could no longer deed such real estate to Charles Hayes.
The trial court denied the plaintiffs' motion for summary judgment after making two determinations: (1) The trial court in its memorandum opinion determined that the resolution passed in 1938, by Adams county satisfied the requirements of sec. 75.36 (2), Stats. 1957, which requires that a resolution be adopted authorizing the county clerk to issue a tax deed to the county. (2) The court found that there was an issue of fact as to whether plaintiffs had been victims of fraud on the part of county officials when tax moneys paid by plaintiffs were applied to the current taxes of 1957, rather than the delinquent taxes of 1954.
" When and how tax deed given. When any lands upon which the county holds a tax certificate shall not be redeemed as provided by law, the county clerk shall execute to the county, in his name of office, a deed therefor, witnessed, sealed, and acknowledged, and in like form as deeds to individuals; and such deeds shall have the same force and effect as deeds executed by such clerk to individuals for lands sold for the nonpayment of taxes; but no such deed shall be issued until the county board shall, by resolution, order the same."
The plaintiffs contend that the 1938 resolution did not authorize the county clerk to issue a tax deed to the county and that no subsequent resolution authorizing the county clerk to issue a tax deed was ever passed by the county board, and therefore their motion for summary judgment should have been granted by the trial court.
The law is settled in Wisconsin that a separate resolution is not necessary every time the county clerk issues a tax deed to the county if a resolution granting continuing authority to issue tax deeds has been passed by the county board. Mead v. Nelson (1881), 52 Wis. 402, 8 N.W. 895, and Bemis v. Weege (1886), 67 Wis. 435, 30 N.W. 938.
The 1938 resolution authorizes the county treasurer under sec. 74.44, Stats., to purchase delinquent tax certificates and not the county clerk. It further provides that all laws relating to the sale, purchase, and redemption of the certificates by the county treasurer shall apply to the county.
The three-year redemption period provided by statute was observed by the county and adequate notice was given before the issuance of the tax deeds. The only manner in which the procedure observed by the county differs with respect to the procedure an individual is required to follow in obtaining a tax deed is that the county board must pass a resolution authorizing the county clerk to issue the tax deed to the county, while no resolution is necessary to issue a tax deed to an individual.
Sec. 74.46. ". . . be entitled to a deed of conveyance of said lands in three years . . ."
Sec. 75.19. "FORECLOSURE OF CERTIFICATES. The holder of any tax certificate may, at his option, in lieu of taking a tax deed, at any time after . . . three years from the date of such certificate, and before he would be debarred from demanding a tax deed thereon, . . ."
Sec. 75.12(1). "No tax deed shall be issued on any lot or tract of land which has been or shall hereafter be sold for the nonpayment of taxes unless a written notice of application for tax deed shall have been served upon the owner,. . ."
Sec. 75.14 (1). ". . . county clerk shall, . . . on presentation to him of the certificate of such sale and proof of service of notice. execute . . . to the purchaser, his heirs or assigns, a deed of the land so remaining unredeemed, . . . and such deed duly witnessed and acknowledged shall be presumptive evidence of the regularity of all the proceedings, from the valuation of the land by the assessor up to and including the execution of the deed, and may be recorded with the like effect as other conveyances of land."
The requirement of sec. 75.36 (2), Stats., that no deed shall be issued until the county board shall by resolution order the same, affords protection to the county and not the taxpayer. This being so, it follows that a subsequent ratification by the county board of the instant action of the county clerk in issuing the two tax deeds to the county would be sufficient compliance with the statute.
There is present in this record the resolution of the county board for appraisal of county lands set forth in footnote 1. Whether or not this resolution in itself would constitute ratification presents a substantial issue of fact which must be resolved by the introduction of material evidence respecting such issue and cannot be resolved on summary judgment. Other evidence may also develop at the trial establishing ratification by the board.
It, therefore, necessarily follows that trial must be had on all issues raised by the pleadings.
By the Court. — Order affirmed.