4. If, however, such excess cannot be determined by computation and
without proof, the court should determine the same, as near as
practicable, to a reasonable certainty, from the evidence produced
on the trial, and require the payment of the balance as terms of
granting relief against such excess.
Ibid.
5. Sec. 1045, R. S. (requiring the assessor to enter upon the assessment
roll in regular order as to lots, blocks, etc., a correct description
of each parcel of real estate in the assessment district, and provid-
ing that where land has been surveyed and platted and the plat
thereof duly recorded “the assessor shall designate the several lots
and subdivisions of such platted ground as they are fixed and des-
ignated by such plat"), is mandatory, and compliance therewith
may be enforced by mandamus. Neu v. Voege,
489
6. The right of a person prejudiced by a noncompliance with said pro-
visions of sec. 1045, R. S., to resort to mandamus is not affected by
sec. 1048 (providing that when contiguous lots owned by the same
person are assessed together as one parcel in violation of sec. 1045
such assessment shall not be invalid on that ground).
Ibid.
7. The owner of a large number of tax certificates, each covering but
one lot in a recorded plat, has sufficient interest in the premises to
entitle him to a writ of mandamus to compel the assessor to list
the lots separately in compliance with sec. 1045, R. S. Ibid.
8. A. purchased for cash from the United States a quarter section of
land. The duplicate certificate of entry delivered to him described
the land as the S. W. of a certain section, but the remainder of
the entry papers and the patent were issued for the S. E. of the
same section. The original application was lost. A. caused the
duplicate certificate to be recorded, and subsequently conveyed
the S. W. to a third person. The patent was received at the local
land office for delivery, but has since been lost or destroyed. The
S. E. was sold for taxes, and title based on the tax deeds became
vested in plaintiff. Twenty-seven years after the entry A. claimed
to discover that a mistake had been made in the records of the
land office whereby the S. E. had been patented to him instead
of the S. W., and he thereupon made an ex parte application to
the land department, without notice to the owner of the tax title,
to have it rectified, which was granted. The S. W. having, in the
meantime, been patented to other parties, A. reconveyed the S. E.
to the United States, and his entry money was returned and pat-
ent canceled. The defendant thereafter entered the S. E. as a
homestead and took possession of the same. Plaintiff brought
ejectment against him. A. died before the commencement of the
action, and his testimony was not obtained. Held:
(1) That upon issuance of the patent to A. the entire title to the
S. E. passed to him, so as to render the land subject to taxation
by the state.
(2) That the action of the land department in attempting to can-
cel A.'s patent was unauthorized and void as to those claiming
title under the tax sale.
(3) That the record of such proceedings was inadmissible to show
that a mistake in A.'s entry in fact occurred.
(4) That the recording of the duplicate certificate by A., and the
execution and delivery by him of a warranty deed of the S. W.,
were of themselves insufficient to establish such mistake.
[WINSLOW, J., dissents, being of the opinion that the title to the
S. E. remained in the United States, and hence that it was never
taxable.] Miller v. Donahue,
9. Certain of the sisters of a religious order organized a corporation
without capital stock for the purpose of conducting and main-
taining a hospital for the care of the sick of all classes. The ar-
ticles of organization provided that no dividends or pecuniary
profits should ever be declared to individual members, and the
sisters received no compensation of any kind for their labor.
When patients were able to pay, a small charge per week was
made, but if they were destitute they were received and treated
without pay, if there was room in the hospital. Tickets were also
sold entitling the holders to admission at any time within a year.
Held, that the corporation was a "benevolent association," within
the meaning of subd. 3, sec. 1038, R. S., and its property used for
hospital purposes was exempt from taxation. St. Joseph's Hos-
pital Asso. v. Ashland Co.
10. The fact that after paying expenses and returning borrowed money
there was at times a surplus which was loaned, without interest,
to build other hospitals of a similar character did not show that
the property was used for pecuniary profit.
Ibid.
TAXATION of costs. See COSTS.
See DEEDS, 5. TAXATION, 7, 8.
1. Sec. 1210h, S. & B. Ann. Stats. (limiting to one year from the date
of the sale the time within which proceedings must be commenced
to set aside any sale of lands for the nonpayment of taxes, or to
cancel any tax certificate, or to restrain the issuing of any tax
certificate or tax deed, for any error or defect going to the validity
of the assessment and affecting the groundwork of the tax), ap-
plies to sales for street-improvement assessments and certificates
issued thereon. Levy v. Wilcox,
2. The joinder of taxes, void for defects going to the validity of the
assessment and affecting the groundwork thereof, with other
taxes which a court of equity will require paid as terms of grant-
ing relief against the illegal taxes, will not prevent the running
of the statute of limitations as to such illegal tax.
Ibid.
3. An action to set aside an illegal special assessment for street im-
provements cannot be deemed commenced against the owner of
the certificate of the board of public works therefor, to whom it
had been transferred by the contractor, so as to stop the running
of the statute of limitations as to the former, until the summons
is actually served upon him, although it had been commenced
against the city and the contractor before the expiration of the
period of limitation.
Ibid.
4. Under the charter of the city of Milwaukee (sec. 21, subch. V, ch. 184,
Laws of 1874), providing that persons entering into contracts with
the city who agree to be paid from special assessments shall have
no claim upon the city in any event except from the collection of
the special assessments made for the work contracted for, no ac-
tion will lie against the city to recover the amount paid for a void
certificate of the sale of land for the nonpayment of such an assess-
ment. Heller v. Milwaukee,
5. The purchaser of a void certificate of the sale of land by a city for the
nonpayment of assessments for local improvements is not entitled
to have his money refunded by virtue of sec. 1184, R. S. (providing
for the refunding of money paid for invalid tax certificates), that
section being applicable only to lands sold for the nonpayment of
general taxes; nor is such right secured by sec. 4986, making the
Revised Statutes apply to cities whenever applicable and not incon-
sistent with their charter, nor by sec. 1186, S. & B. Ann. Stats., pro-
viding for reassessment for money refunded on illegal tax deeds.
Ibid.
6. Land was sold for the taxes of 1866 and 1868 to the county, and
deeds therefor were issued to W. & P. and W. respectively, as its
assignees, but it did not appear that W. was a co-tenant with P.
in the ownership of the first certificate at the time the second was
assigned to him, or that he was then liable, legally or equitably,
for the taxes on which the second certificate was based. Held,
that W.'s deed was not invalid because P. was his co-tenant under
the first deed. Miller v. Donahue,
498
TENANTS IN COMMON.
See TAX TITLES, 6.
1. A tenant in common in possession who has once acknowledged his
cotenant's title cannot claim to hold adversely until he has brought
home to his cotenant knowledge of the adverse nature of his hold-
ing, unless his exclusive use and enjoyment has been so long con-
tinued as to justify a finding of acquiescence on the part of the
other tenant. Saladin v. Kraayvanger,
180
2. In an action by one tenant in common against her cotenant to set
aside a sale under a foreclosure judgment through which the lat-
ter had fraudulently acquired title to the common property, it ap-
peared, among other things, that the parties were brother and sis-
ter; that the mortgage had been given by their mother, under
whom they claimed, to secure the defendant's individual debt;
that to defendant's knowledge plaintiff was an ignorant woman,
unfamiliar with business, very poor, deserted by her husband, and
living at a great distance; that no direct notice of the foreclosure
was ever brought home to the plaintiff, although some mention
was made of a sale about to be made; that her name had been in-
tentionally misspelled on the copy of the summons which had
been mailed to her; and that she remained in ignorance of the sale
until her return, more than ten years after the execution of the
deed, when she promptly asserted her rights. Held, that the
plaintiff was not guilty of such laches as would preclude a recov-
Ibid.
ery.
TENDER. See DEEDS, 6. TAXATION, 3. VENDOR AND PURCHASER, 2.
TITLE to land. See ACTION, 4. BOUNDARIES. CORPORATIONS, 7-9.
DEBTOR AND CREDITOR. DEEDS. EQUITY. FIXTURES. LIENS, 2, 3,
5-7. MORTGAGES. RECORDING ACTS. TAXATION, 5-8. TAX TITLES.
TENANTS IN COMMON. VENDOR AND PURCHASER. WATERS.
WILLS, 9.
TOMAHAWK CITY CHARTER. See MUNICIPAL CORPORATIONS, 2.
TOWNS. See HIGHWAYS, 2.
TRIAL, Place of. See CHANGE OF VENUE.
TRUSTS AND TRUSTEES. See CORPORATIONS, 6. DEBTOR AND CREDITOR,
1, 2. DEEDS, 1.
TUITION. See PUBLIC SCHOOLS.
ULTRA VIRES. See CORPORATIONS, 12-17.
VENDOR AND PURCHASER OF LAND.
See ACTION, 4. CONTRACTS, 3. CORPORATIONS, 7-9. DEBTOR AND CRED-
DEEDS. EQUITY. RECORDING ACTS.
1. Where a contract for the sale of land has been so far executed that
a valid title to the land has been conveyed to the vendee, breach
of a covenant in the deed to deliver possession of the premises on
a specified day and the insolvency of one of the grantors are in-
sufficient to warrant a rescission. Topping v. Parish,
378
2. C. entered into an executory contract with L. for the purchase of
certain lots. Before the entire consideration was paid he sold part
of the lots to R. and gave him a contract for them, receiving part
cash and part notes in payment. Each note referred to the lots
as the consideration. At the same time C. orally promised R. to
apply his payments on the contract with L. Before maturity of
the notes C. transferred his interest in both contracts to K., who
agreed to carry out C.'s promise as to the application of payments.
K. afterwards transferred both the contracts and the notes to N.
as collateral. Upon learning of this transfer R. refused to pay the
notes unless N. would agree to comply with C.'s promise. N. prom-
ised accordingly, and part of the notes were paid, but the money
was not applied as agreed. Held, that R., as against N., had the
right to have the money already paid, as well as that remaining
due, applied upon C.'s contract with L., and that N. could not re-
cover the final balance due on the notes without tendering a con-
veyance of the lots. Northwestern Nat. Bank v. Ramsey, 544
3. In an action against R. on the notes, his answer admitting the in-
debtedness and offering to pay the amount due upon receiving a
proper conveyance raised an equitable issue only. A special ver-
dict was therefore advisory merely, and the court should have
made the usual findings, but in their absence the verdict will be
treated as a finding, and judgment ordered upon it and the undis-
puted evidence.
Ibid.
VENUE. See CHANGE Of Venue.
See APPEAL, 8. INSURANCE, 5. MASTER AND SERVANT, 5.
11, 17, 18. VENDOR AND PURCHASER, 3. WILLS, 3.
1. The discretion of the trial court in respect to the questions to be
submitted for a special verdict does not go to the extent of war-
ranting a refusal to submit a proper question covering a material
controverted fact, unless that subject is covered by other questions
submitted. F. Dohmen Co. v. Niagara Fire Ins. Co.
2. It is not a prejudicial error to take a general verdict in connection
with a special verdict, when the special verdict disposes of all the
controverted issues. Cooper v. Insurance Co.
1. The court commissioner before whom the sureties on the bond of an
assignee made affidavit as to their responsibility as required by
sec. 1694, R. S., approved and filed the bond without signing the
jurat of the affidavit. Subsequently, without obtaining leave of
court to amend the proceedings, he attached his signature while
the affidavit was on file in the clerk's office. Held, that the assign-
ment was void as to a creditor of the assignor who commenced
garnishment proceedings before the signature was attached. Ger-
man American Bank v. Devlin,
155
2. In a proceeding to set aside as fraudulent and void, under sec. 1693a,
S. & B. Ann. Stats., transfers and conveyances made to a bank by
its manager (who shortly thereafter made a voluntary assignment),
to secure the latter's indebtedness to the bank. the evidence is held
sufficient to sustain a finding that the bank did not know, or have
reasonable cause to believe, the debtor to be insolvent at the time
of the transfers. Momsen v. Plankinton,
VOLUNTARY PAYMENT. See COUNTIES, 3, 4.
Of right to appeal. See APPEAL, 5.
Of irregularity in judgment. See APPEAL, 7.
Of objections to findings, etc. See APPEAL, 8.
Of lack of jurisdiction. See CHANGE OF VENUE, 1.
Of proofs of loss. See INSURANCE, 19.
Of strict performance of contract. See LANDLORD AND TENANT, 2.
Of compliance with condition precedent. See TAXATION, 1.
WARRANTY. See AGENCY, 1.
WATERCOURSES. See WATERS, 3, 4.
Mills and mill-dams: Reciprocal easements.
1. Where the owner of a mill-dam at the outlet of a lake has, for a
length of time sufficient to give him a prescriptive right, main-
tained the waters of the lake at such a height that they have cov
ered the low marshy shores and extended to the high banks,
thereby rendering the adjacent lands desirable for use as summer
resorts, the riparian owners, who have for the same period enjoyed
the advantages of such artificial level of the waters and in reliance
upon its maintenance have improved their property at great ex-
pense for the use mentioned, have on their part an easement to
have the waters kept at said higher level and may prevent the
lowering thereof to their injury by the owner of the dam,-at
least so long as he does not abandon or surrender his easement to
flood the lands. Smith v. Youmans,
103
[2. It would seem that the owner of the dam in such a case may abandon
his easement of flowage so as to escape all liability at law for con-
sequential damages to the owners of the flooded lands by reason
of the lowering of the level of the lake, unless he is bound by law
or agreement to maintain the higher level of the waters in the
lake.]
Ibid.
3. The lessee of a dam at the outlet of a lake, who is also the proprie-
tor of another dam lower down on the stream, has no other or
greater rights than his lessor in respect to lowering the level of
the waters of the lake.
Lake or watercourse? Fishing and hunting.
4. By the expansion of a small stream a shallow body of water from
thirty-five to sixty-five rods in width and about three miles long
was formed, through which there was little or no current during
the greater part of the year. In summer the rushes and wild rice
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