#### Menasha Wooden Ware Company, Respondent, vs. Thayer and another, Appellants.

*September 21*

October *8, 1912.*

*Tax titles: Constructive redemption: Misinformation given by county cleric: Who may redeem: Statutes: Construction.*

1. Sec. 1165, Stats. (1898), relating to redemption of land sold for taxes, should be liberally construed.

2. Although the owner of land knew- that the taxes thereon for a previous year had not been paid, and had been informed by the county clerk of the amount required to redeem, yet when thereafter, within the time for redemption, his agent, to whom he had given sufficient money for the purpose, offered to redeem and was informed by the county clerk that there were no delinquent taxes, and by reason of such misinformation they were not paid, there was a constructive redemption by such owner.

*612[3. Whether a prospective purchaser of land under an oral agreement pursuant to which a deed had been deposited in escrow and he was to accept such deed and pay the consideration if on examination he found the title good, was within the term “other person” in sec. 1165, Stats. (1898), and had a sufficient interest in the land to entitle him to redeem from a tax sale, doubted.]

Appeal from a judgment of the circuit court for Oneida county: A. H. Reid, Circuit Judge. '

*Affirmed.*

Action to quiet title to the southeast quarter of the southwest quarter and the southwest quarter of the southwest quarter of section 36, township 40 north, range 2 west. From February 5, 1892, to January 16, 1900, the lands were owned in fee simple by A. B. McDonnell and Thomas Irvine, who were owners of large quantities of lands and were dealing as a partnership known as McDonnell & Irvine, of the business of which McDonnell had charge on behalf of the firm. By a deed dated December *5,*1899, but not delivered until the afternoon of January 16, 1900, they conveyed the premises to one Utz, who was acting as trustee for the plaintiff. November 10, 1902, Utz conveyed the same to plaintiff, who has since made no conveyance thereof. In 1898 the lands were duly taxed, and in May, 1899, were sold for the nonpayment of taxes, and on May 16, 1903, a tax deed in proper form was issued to the defendant *Thayer,*which was immediately put on record. In December, 1910, the defendant *Thayer*conveyed to the defendant *Tobey*a one-third interest in said tax title, and .defendants claim under said tax deed and not otherwise. In December, 1899, McDonnell & Irvine made an oral agreement with plaintiff’s trustee, Utz, to execute and deposit with the State Bank of Phillips, Wisconsin, their warranty deed of a large number of descriptions of lands, including those in question, with directions to deliver the same to Utz on payment of the consideration, and Utz agreed that he would accept such deed and pay the consideration if on examination he found the title good. The deed was drawn and executed by McDonnell & Irvine and deposited with the State *613Bank of Phillips mili directions in accordance with said oral agreement. On December 5, 1899, McDonnell knew that the taxes of 1898 on the two forties here involved were unpaid, and that the lands were sold therefor at the tax sale of 1899, and on that day McDonnell authorized and directed one Stevens, who was instrumental in bringing about the oral agreement for the sale of the lands, to redeem any outstanding taxes on the lands included in said warranty deed, and furnished him with money to do so. On December 6th McDonnell wrote to the county clerk of Price county a letter inquiring about delinquent taxes on these lands, and on the 7th he received from the county clerk a statement showing that the amount of $2.71 with interest and redemption fees were required to redeem each forty. McDonnell did not communicate to Stevens any of the information thus received nor again see him before January 16, 1900, and McDonnell took no further personal action in respect to said taxes and never thereafter learned whether the same were paid. On January 16, 1900, while'McDonnell & Irvine’s said deed and instructions were still with the State Bank of Phillips, one Miner, an agent of plaintiff and of Utz, fully authorized to act in the premises, went to Phillips,. Wisconsin, and with said Stevens proceeded with and made an examination of the records in the register of deeds’ office of Price county respecting the title to the lands described in said warranty deed, and then proceeded to the county clerk’s office of said county and inquired of the county clerk whether there were any outstanding taxes against said lands. Miner had a correct list thereof, and Stevens also had a long list of descriptions of lands, including the lands described in the warranty deed. Miner read from his list to the county clerk the descriptions of lands and the county clerk turned to his records, examined and reported upon each description for each tax sale for several years preceding that date. Said list of Miner was read through for each tax sale inquired about. Neither Stevens *614nor Miner personally examined the tax-sale records. The county clerk orally reported as the list was read that-there were no delinquent taxes against the lands inquired about, which included the lands involved in this action. Miner had sufficient funds of his principal with which to pay any taxes which might he found delinquent on said lands, and he and said Stevens intended in good faith to pay any such delinquent taxes found at that time, and would have paid the same if any had been reported by the county clerk. Upon completing the examination Miner paid the consideration for the deed, received delivery thereof, and immediately placed it upon record. Both Miner and Stevens in good faith believed that 'there were no delinquent taxes against any of said lands described in said deed. ■ Plaintiff has paid all taxes upon the lands herein involved, beginning with the tax of 1899 and continuing to this date, except that the defendants paid the tax of 1910'. Neither plaintiff nor Utz nor Miner nor Stevens learned of the fact that the lands herein involved had been sold at the tax sale of 1899, nor that said tax deed thereon had been issued, until October, 1910.

The trial court held that on January 16, 1900, plaintiff had a sufficient interest in the land to entitle it to redeem, and that its offer to do so constituted a constructive redemption, and entered judgment setting aside the tax deed upon repayment of the amount for which the lands were sold for taxes, and the taxes paid by the defendants in 1910, with interest, from which judgment the defendants appealed.

For the appellants there was a brief by *Barry Barry,*attorneys, and *A.*W. *Scmborn,*of counsel, and oral argument by *Mr. Scmborn*and *Mr. M. Barry.*

For the respondent there was a brief by *Holland & Lovett,*attorneys, and *Jerome B. North,*of counsel, and oral argument by *Mr. North.*

Vixje, J.

From the statement of facts it appears that McDonnell, one of the owners of the lands in question, on *615December 5, 1899, knew tbat tases bad not been paid tbereon for tbe previous year; tbat be tben gave one Stevens money to pay all delinquent taxes on any land .in tbe list given bim, including tbe lands in litigation; tbat be afterward wrote tbe •county clerk and was informed of tbe amount required to redeem, but did not see Stevens again nor communicate to bim tbe information received from tbe county clerk Stevens went to tbe county clerk and informed bim be desired to pay all delinquent taxes on tbe list of lands be bad. Tbe clerk, after examining tbe tax records, 'informed bim there were no delinquent taxes. Tbe situation shown is certainly more favorable to tbe owner than it would have been if McDonnell, upon receipt of tbe letter from tbe county clerk notifying bim •of .the amount required to redeem, bad' personally gone to tbe clerks office and offered to redeem, and bad tben been told by tbe clerk, after an inspection by tbe latter of tbe records, that there were no delinquent taxes. In such case it cannot be doubted tbat tbe owner would have a right to rely upon tbe last information given bim by tbe clerk. Here tbe agent •of tbe owner bad no personal knowledge of tbe fact tbat tbe clerk bad even claimed there were any taxes due,' and be did not report to bis principal till after tbe sale was made, and tbe latter never learned tbat tbe taxes were not paid. Tbe facts show tbat tbe owner of tbe lands through bis agent offered to redeem, was told by tbe county clerk tbat there were no delinquent taxes, and by reason of such misinformation they were not paid. Previous information to tbe effect tbat there are delinquent taxes does not. preclude an owner from relying upon tbe county clerks statement tbat there are none when be personally or by agent offers to pay or to redeem them. Tbe statute of redemption, see. 1165, Stats. (1898), which provides tbat “tbe owner or occupant of any land sold for taxes or other person may, at any time within three years from tbe date of tbe certificate of sale, redeem tbe same,” •etc., should be liberally construed. . *Jones v. Collins,*16 Wis. 594; *Karr v. Washburn,*56 Wis. 303, 14 N. W. 189; *Lander**616*v. Bromley,*79 Wis. 372, 378, 48 N. W. 594; *Begole v. Hazzard,*81 Wis. 274, 51 N. W. 325; *Barrett v. Holmes,*102 U. S. 651, 657. It must therefore be held upon the undisputed facts that there was a constructive redemption by the-owner.

This disposition of the ease renders it unnecessary to determine. whether or not the prospective purchaser had a sufficient interest in the lands to entitle him to redeem. The trial-court held he had, under the ruling in *Karr v. Washburn, supra,*and *Begole v. Hazzard, supra.*Such holding would seem to be an extension of the doctrine announced in those cases, and it is doubtful if any further extension thereof is-justifiable.

*By the Court.*— Judgment affirmed.