#### Maxcy, Appellant, vs. Simonson and others, Respondents. Simonson, Respondent, vs. Maxcy, imp., Appellant.

*January 30*

February *19, 1907.*

*Tax titles: Sales to prohibited officers: Evidence: Findings: Purchase of tax certificates or tax title from county: Sales at discount: Right of tax-title claimant to face of tax certificate and interest.*

1. A conveyance of a tax title by tbe county is not to be held void within the prohibitions of sec. 1143, Stats. 1898 (providing that certain county officers shall not make any purchase, directly or indirectly, of any tax certificate or tax title held by the county), because a deputy county treasurer was interested in making the sale, where the court on sufficient evidence has found that such officer was not interested in the purchase.

2. In an action by the original owner to quiet title as against a tax-title claimant it is not error, under the provisions of sec. 121071, Stats. 1898, to require the original owner to pay the face value of the tax certificates and interest from the time the tax-title claimant acquired them, or from the time he received conveyance from the county of the title acquired by the county *651under them. It is not the purpose of the statute to enable the original owner to escape paying a portion of his taxes by reason of the county haying sold its tax certificates at less than their face value.

3. Under sec. 1210b, Stats. 1898, in an action to set aside a tax deed, i the court adjudged that the tax deed was void, that the original owner he barred unless within the time allowed he pay into court, for the use of the tax-title claimant, the face of the tax certificate on which the deed was based and the face of all subsequent tax certificates, with interest, and upon such payment that the title to the lands in question he established in the original owner, and awarded a judgment for costs in favor of the tax-title claimant. *Held,,*that the judgment for costs was premature and erroneous.'

Appeal from a judgment of the circuit court for Bayfield county: Jorar K. Paeish, Circuit Judge.

*Reversed.*

It appears from the record and is undisputed that two actions were commenced by the respective parties on or about May 1, 1902, and after issues were joined therein they were consolidated into one action and tried together. Action Ho. 1 was commenced by *Maxcy.,*as owner in fee of the premises described, against *Simonson, Sowder,*and *Axelberg*to quiet title pursuant to sec. 3186, Stats. 1898. The defendant *Si-monson*separately answered in that action, claiming title under a tax deed to the county executed May 11, 1900, for the taxes of 1895 and sale of 1896, which tax deed was recorded May 11, 1900, and a quitclaim deed to him from the county, recorded September 17, 1900, and also under a tax deed issued to *Simonson*March 5, 1902, and recorded March 6, 1902, for the taxes of 1896 and sale of 1897, and that *Simonson*also held certain tax certificates on the sale of the lands for the taxes of the years 1897, 1898, and 1899. The defendants *Sowder*and *Axelberg*separately answered by way of a general denial and asked that the action he dismissed with costs as to him. The other action, Ho. 2, was commenced on or about May 1, 1902, by *Simonson*as owner and holder of such tax deeds and certificates and quitclaim deed, *652against said *Maxcy,*claiming title under the original owner and against said *Sowder*and Axelberg, wbo were brought into the case by order of tbe court for the purpose of barring them and all persons claiming under them of all right, title, interest, or claim in or to said lands or any part thereof, pursuant to secs. 1197 — 1210, inclusive, Stats. 1898. The defendant *Maxcy*separately answered in that action, claiming title under the original owner, and alleging that the quitclaim deed from the county to *Simonson*-was illegal and void for the reason that *Axelberg*was deputy county treasurer and an interested party in the lands and said purchase of the same, contrary to the statute in such case made and provided; that *Axelberg*was still one of the owners of said lands, and that he and *Sowder*held the title to the same in the name of *Simonson. Maxcy*also alleged in said answer that said tax deeds, respectively, -were illegal and void for several reasons stated in said answer. By way of counterclaim said *Maxcy*alleged that he was the owner in fee simple of the premises described and in actual possession and occupancy thereof; prayed judgment that such tax deeds and tax certificates should be adjudged null and void" and that *Simonson*take nothing by his action, and for costs; that his claim be established as against the claim of *Simonson;*that *Simonson*be> forever barred from having or claiming any right or title to said lands adverse to said Maxcy, and that *Simonson*be adjudged to release to *Maxcy*all claim to said lands and pay the costs of the action. *Simonson*replied, denying each and every allegation of such counterclaim. *Sowder*and *Axelberg*separately answered to the effect that they made no claim to the lands described in the complaint of *Simonson,*and put in a general denial of the allegations therein contained.

The two actions being so at issue and consolidated and tried as one action, the court at the close of the trial found as matters of fact, in effect, (1) that all the allegations of *Si-monson's*complaint are proven and true and all the allega*653tions of bis answer are proven and true; (2) that all tbe allegations of tbe answers of *Sowder*and *Axelberg*are proven and true; (3) tbat *Maxcy*is tbe owner of tbe original title of tbe lands described; (4) tbat *Simonson*claims title to said lands under and by virtue of said two tax deeds and said tax certificates; (5) tbat tbe tax deed of May 11, 1900, was based on tbe taxes of 1895 and tbe tax certificates on the sale of 1896, aggregating $85.11, and recorded as mentioned; (6) tbat tbe tax certificates for tbe taxes of 1896 and sale of 1897 amounted in tbe aggregate to $44.44, for tbe taxes of 1897 and sale of 1898 amounted in the aggregate to $48.61, for tbe taxes of 1898 for tbe sale of 1899 amounted in the aggregate to $60.25, and for the taxes of 1899 for the sale of 1900 amounted in tbe aggregate to $56.92; (7) tbat September 1, 1900, all of said tax certificates were for value duly sold, assigned, and transferred to *Simonson;*(8) tbat tbe tax deed of March 5, 1902, was based on tbe tax certificates of tbe sale of 1897, in tbe aggregate $44.44, and was recorded as mentioned; (9) tbat *Simonson*is now,-and ever since said assignment of said certificates to him as mentioned has been, tbe lawful owner and bolder of tbe same, except the certificates on the sale of 1897, in which tbe second tax deed was issued; (10) tbat after tbe execution of tbe first tax deed and on September 17, 1900, tbe county by quitclaim deed conveyed tbe lands described to' *Simonson*and tbe same was recorded as mentioned; (11) tbat both of said tax deeds and all of said tax certificates are illegal and void for errors and irregularities not going to tbe groundwork of tbe tax on which tbe same were based; (12) tbat all tbe allegations in both tbe complaint and answer of *Maxcy*are unproven and untrue, except in relation to tbe illegality of said tax deeds for errors and irregularities not going to tbe groundwork of tbe tax on which tbe same were based; (13) tbat due notice of tbe pendency of tbe action commenced by *Simonson*was filed May 26, 1902.

*654As conclusions of law the court found, in effect, (1) tbat *Simonson*is entitled to judgment against Maxcy, and tbat *Maxcy*and all persons claiming under bim since filing tbe notice of *Us pendens*be barred of all right, title, interest, or claim in or to tbe lands described, *unless*said *Maxcy*pay into court for tbe use of Simonson, within thirty days from service of notice of tbe entry of these findings, tbe amount of tbe tax certificates upon which tbe first tax deed was based, with interest thereon from September 1Y, 1900, at the rate of fifteen per cent, per annum until paid, and also tbe total and aggregate amount of all said tax certificates so assigned to •said *Simonson*by tbe county, with interest thereon at tbe rate •of fifteen per cent, per annum from September 1, 1900, until said money is so paid; (2) that upon payment of said sum by *Maxcy*all right and title in said lands be established in said *Maxcy;*(3) tbat Simonson, *Axelberg,*and *Sowder*are severally entitled to their costs and disbursements herein against *Maxcy.*

Thereupon, and on motion of *Simonson’s*attorney and pursuant to such findings of fact and conclusions of law, judgment was entered by tbe clerk, wherein it is ordered and adjudged, in effect, (1) tbat *Maxcy*and all persons claiming under bim since May 26, 1902, be barred of all right, title, interest, or claim in and to said lands or any part thereof, *unless Maxcy*pay into court for tbe use of *Simonson,*within thirty days from tbe entry and notice of the findings, tbe said sum of $85.11, with interest thereon from September 1Y, 1900, at fifteen per cent, per annum until so paid, also the total and aggregate amount of all said tax certificates, amounting to $210.02, with interest thereon from September 1, 1900, until said money be so paid; (2) that upon the payment of said sums by *Maixcy*all right and title in and to said lands be established in *Maxcy;*(3) that *Simonson*do have and recover of *Maxcy*his costs and disbursements taxed at $98.41. It is therein further ordered and adjudged that *Axelberg*and *655
      *Sowder,*respectively, do bave and recover of *Maxcy*bis costs and disbursements in tbis action taxed at tbe sum of - dollars, but tbe same were not taxed.

From sucb judgment so entered by tbe clerk *Maxcy*appeals.

*A. W. McLeod,*for the appellant.

*John Walsh,*for the respondents.

Cassoday, C. J.

1. It is claimed that the sale from tbe county to *Simonson*was void because tbe deputy county treasurer, *Axelberg,*was interested in making tbe sale. Tbis contention is based upon tbe statute which prohibited sucb deputy from making any purchase, directly or indirectly, at any tax sale, or to purchase any tax certificate or tax title held by tbe county. Sec. 1143, Stats. 1898. It is enough to say that tbe trial court found that *Axelberg*was not so interested in making such purchase, and tbe evidence is sufficient to support such finding.

2. It is claimed by counsel that tbe amount which the court required *Maxcy*to pay into court as a condition of relief from tbe tax deed and tax certificates held by *Simonson*was excessive and not authorized by tbe statute. It was found by tbe court and conceded by counsel that tbe tax deed was illegal and void for errors and irregularities not going to tbe groundwork of tbe tax on which tbe same was based. Both parties cite and apparently rely upon tbe same section of tbe .statute (sec. 1210h, Stats. 1898). Tbe portion of that section applicable to tbis case states that tbe party claiming under tbe,original title, “if be show himself otherwise entitled to judgment, shall, *before*the entry thereof, within a reasonable time to be fixed by tbe court, pay into court for tbe person or persons claiming under sucb tax sale *or*tax certificate tbe amount for which sucb land *was sold, and th'e amount paid*by such person or persons *for taxes levied*upon tbe premises *subsequent*to sucb sale, with interest *on-all such*
      *656
      *amounts*at tbe rate of fifteen per cent, per annum from tbe *times*of payment until tbe said money *be so paid into court;*and in default of sucb payment witbin tbe time so fixed tbe defendant [tax-title claimant] shall have judgment in tbe action.” Counsel on eacb side cite and seemingly rely on *Blackman v. Arnold,*113 Wis. 487, 492, 493, 89 N. W. 513, in support of tbeir construction of tbe language quoted. In tbat case tbe land was sold May 15, 1894, for delinquent taxes of 1893, and was bid in by tbe county at tbe tax sale. On January 6, 1895, tbe tax certificate given on tbat sale was purchased by and delivered “to Webb on payment of tbe *face amount*of sucb certificate.” Tbe only controversy in tbat case was whether tbe defendant, claiming title under tbe original owner through tbe foreclosure sale, was required by tbe statute quoted “to pay interest on tbe amount of tbe 1894 certificate from its date, May 15, 1894, instead of from tbe time Webb paid tbe county therefor, January 6, 1895, the excess being $9.95,” and it was held tbat tbe interest should be reckoned from said last-mentioned date. In tbe case at bar the original owner of tbe lands failed to pay tbe taxes assessed thereon for tbe years 1896, 1897, 1898, and 1899, and they were sold in due course to Bayfield county; and tbe certificates on sucb sales were duly assigned and transferred by tbe county to *Simonson*September 1, 1900. In harmony with tbe ruling of the court in *Blackman v. Arnold, supra,*the trial court, as one of tbe conditions of relief, required *Maxcy*to pay into court for tbe use of *Simonson*tbe total and aggregate amount of all of said tax certificates so assigned to *Simonson,*“with interest thereon at tbe rate of fifteen per cent, per annum *from the date of such assignments,*September 1, 1900, until said money be so paid.” And so the trial court, as one of tbe conditions of relief from said tax deed and tax certificates, required *Maxcy*to pay into court for the use of *Simonson*tbe amount of tbe tax certificates upon which said first tax deed was based, together with interest thereon *657at fifteen, per cent, per annum from tbe time *Simonson*procured. a quitclaim deed from tbe county, September 17, 1900, until said money be so paid. Tbe correctness of sucb requirement as to tbe tax deed seems to be conceded. Tbe contention is that *Maxcy*should only bave been required to pay into court, as a condition of relief from said tax deed and tax certificates, $100, wbicb was tbe amount wbicb *Simonson*paid tbe county for tbe quitclaim deed September 17, 1900, and interest tbereon at tbe rate of fifteen per cent, per an-num from that date to tbe time of payment. No authority is cited on either side of tbe question so presented. The language of tbe statute quoted furnishes some plausibility to the contention. As indicated, tbe requirement to “pay into court,” in case a tax deed has been taken, “tbe amount for wbicb sucb land was sold,” manifestly refers to tbe tax sale and tbe amount for wbicb tbe tax certificate was issued, with interest as stated in tbe statute; and that is so even where tbe land has been bid in by tbe county and no money has in fact been paid. So it is manifest that sucb interest is to be added to “tbe amount paid . . . for taxes levied . . . subsequent to sucb sale . . . from tbe times of payment until tbe said money be so paid into court.” Tbe same is true as to tbe purchase of tax certificates of sale at their face value, as in *Blackman v.*Arnold, 113 Wis. 487, 89 N. W. 513. Tbe question that here confronts, us is whether tbe same is true where tax certificates are purchased at a discount, as in tbe case at bar. In view of tbe fact that tbe amount of tbe tax is never anything more than a very small per cent, of tbe value of tbe property upon wbicb it has been assessed, can it be assumed that in enacting tbe'stat-ute in question tbe legislature bad in contemplation that tax certificates would be sold for less than their face value *%*This court held long ago that tbe performance of an agreement by a county to sell its tax certificates for an exceedingly low and nominal value might be enjoined at tbe suit of a taxpayer of *658tbe county. *Willard v. Comstock,*58 Wis. 565. See *Webster v. Douglas Co.*102 Wis. 181, 189, and cases there cited. Had tbe owner of tbe-lands in question attempted to- redeem tbe same, be would, of course, bave been compelled to pay tbe full face value of sucb tax certificates, witb interest at tbe rate mentioned from tbe respective dates of sucb certificates. Sec. 1165, Stats. 1898. Tbe manifest purpose of tbe statute in question is to secure tbe early payment of taxes by tbe owners of lands, and to compel those who neglect paying their taxes to proceed witb promptness in case they desire to- contest tbe validity of sucb tax sales. It certainly was not tbe purpose of tbe statutes to enable sucb owners to escape paying ,a portion of their taxes by reason of tbe county having sold its tax certificates at less' than their face value. We find no error in tbe findings of fact in tbe particulars mentioned.

3. Error is assigned because tbe judgment entered by tbe clerk of tbe court adjudges costs and disbursements against *Maxcy*and in favor of tbe other parties, which costs and disbursements are taxed in favor of *Simonson*at $98.41. Sucb judgment is conditional and certainly premature and erroneous. Tbe statute quoted expressly required that tbe moneys to be paid into court should be so- paid “before tbe entry” of judgment in favor of tbe original owner; “and in default of sucb payment within the time so fixed the defendant [tax-title claimant] shall bave judgment in tbe action.” Thus it appears that tbe character of tbe judgment to be entered and the party in whose favor the same is to be entered depend" ¡upon whether tbe required amounts shall be so paid into court — a fact which tbe record fails to disclose has been determined. Tbe findings and judgment seem to bave substantially disposed of the merits, but they left a “condition to be performed in order fully to determine tbe rights of tbe parties,” and hence tbe judgment was, at most, merely interlocutory. Sec. 2883, Stats. 1898. Tbe proceedings in such cases are quite similar to those in ejectment under sec. 3081, *659Stats. 1898, where tax titles are defective. One of tbe consolidated actions was brought by the landowner to quiet title pursuant to sec. 3186 of the Statutes. Had he substantiated his title under that section he would have been entitled to -costs, because none of the defendants therein “disclaimed all title to such land” nor gave any “release thereof.” Besides, such tax deed and all of said tax certificates were held to be illegal and void, and so the tax-title claimant failed. We must hold that the judgment so awarding costs is erroneous and contrary to the statutes in the particulars mentioned.

No other question requires consideration.

*By the Court.*— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.