Washburn Land Co. v. Sanborn , 150 Wis. 562 ( 1912 )

BarNes, J.

There was nothing unusual about tbe original transaction between attorneys Sanborn" and McLeod. Tbe former bad instituted an action to bar tbe former owners of certain lands under sec. 1197, Stats. (1898), and succeeding sections. Tbe plaintiffs beld a single tax deed on this land on wbicb tbe tbree-year statute of limitations bad not run, and some tax certificates wbicb were not old enough to be deedable. Tbb defendants bad tbe right under tbe statute to set up by way of defense' certain defects or irregularities which would avoid the tax deed, but as a condition of making such defenses they were obliged to deposit with the clerk of the court at the time of filing their answer, for tbe use of the plaintiffs, the sum for which the parcels of land were sold, with interest thereon, together with subsequent taxes paid by tbe plaintiffs, with interest, and allege in tbe answer that they bad made such deposit and were willing to pay such portion of tbe costs and disbursements of tbe action as were adjudged to be just and reasonable, in case tbe plaintiffs elected to receive the deposit so made. . After such proceedings were bad, tbe plaintiffs might elect to receive tbe deposit) and as a condition of accepting tbe money they would be obliged to release to tbe defendants all their right, title, and interest in tbe lands. If tbe plaintiffs failed to accept tbe offer so made and tbe defendants prevailed on tbe trial, tbe latter were entitled to recover their costs incurred after the offer was made.

It'is quite apparent from tbe record in this case that Mr. Scunborn was satisfied that the tax deed under which his clients claimed would be set aside by tbe court, because it was void for various reasons. Mr. Sanborn so stated in an affidavit which he made. This being so, and Mr. McLeod having appeared in the action as attorney for the defendants, and having expressed a willingness to pay what tbe statute obligated him to pay, there was apparently no controversy left. It was no doubt considered by both attorneys that tbe easiest and cheapest way to dispose of tbe case was to procure a quitclaim deed from tbe Emersons and pay to their 'attorney the money to which they were entitled and close the matter up without further court proceedings. The arrangement fell through because the Emersons refused to execute the deed and repudiated the authority of their attorney to dispose of their suit in that way. It is true that Mr. Sanborn made no positive agreement to procure the deed, but he did promise to ask his clients for it, and did so. As the matter then stood, the tax deed under which plaintiffs claimed could only be wiped out by a judgment of court, and the defendants interposed an answer in the case. This answer did not allege the payment of any money into court for the use of the plaintiffs, but in lieu of such averment did allege that there had been paid to the plaintiffs the sum of $806.15 to cover taxes, interest, and charges, together with the costs of the action. This averment related to the sum paid Sanborn. On March 14, Í903, judgment was entered in defendants’ favor on the issue so joined. Later this judgment was set aside because of an alleged champertous agreement between the defendants and their attorney, and because of such agreement judgment was rendered in plaintiffs’ favor in accordance with the demand of the complaint. An appeal was taken from this judgment to this court, and it was affirmed in June, 1906 (129 Wis. 61, 107 N. W. 1037). Thereupon McLeod demanded the return of his money, which was refused.

In July, 1903, the Emersons demanded of Sanborn that he turn over to them the amount of money paid him by McLeod, less attorney’s fees, computed according to a contract alleged to exist between the parties. This request was refused, and of the amount received there was credited to Emerson Brothers on account the sum of $717, and the balance' retained as the taxable costs and disbursements. Thereafter the Emer-sons, apparently discovered the existence of the alleged cham-pertous agreement, and on January 2, 1904, served on the defendant a notice to the effect that they had deposited in a designated bank, subject to his order, the sum of $91.50 in pay-meat of Ms fees in tbe pending suit, and demanded that he return to McLeod the sum of $806.15 received from the latter. This demand was not complied with.

Two errors are assigned and argued: (1) the trial court was wrong in finding that McLeod received no consideration for the money paid defendant; and (2) it was error not to hold that the plaintiff’s claim was barred by the statute of limitations.

The argument urged in support of the first assignment of error is that the money was paid as a redemption of the tax liens held by Emerson Brothers and operated to redeem the land from such liens. It is obvious that these tax liens were not redeemed. A tax lien which has ripened into a tax deed is not subject to redemption. If the Emersons had accepted this money with full knowledge of the facts they might and probably would be estopped from asserting title under their deed. But the deed would remain an apparent lien or cloud on the title until it was set aside by a judgment of court or until the Emersons conveyed to the defendants in the then pending action. It is clear thát McLeod paid his money for the purpose of wiping out the tax liens and claims of the Em-ersons and that they were not wiped out and that he received no consideration for his money. While Mr. Sanborn did not agree that he would procure a deed from his clients, it was either expressly or tacitly understood that he would endeavor to’ do so, and that if he did not succeed in getting the deed McLeod might interpose an answer in the case and treat the money paid Sanborn as being tantamount to a payment into court as required by statute, and it was so treated in the subsequent trial of the case.

In support of the second error argued it is urged that in any event the relation of debtor and erteditor existed between San-born and McLeod from the time the check was deposited in October, 1899, and that inasmuch as the-action was not commenced until April, 1908, it was barred by the six-years statute of limitations. In this connection it was argued that San-born was not a bailee because there was no understanding that the identical thing deposited should be returned.

The relation of debtor and creditor did not exist between these parties so long as the litigation continued. The check was left with Sanborn as a deposit for a specific purpose, and until the case was finally determined it could not be withdrawn without loss of the right to defend the action. Sanborn really was in the position of trustee whose duty it was to pay the money to his former clients if they were beaten in the suit, or to McLeod if he was unsuccessful. So long as the litigation was in progress neither of the parties could withdraw the money without jeopardizing their rights, and it was Sanborn's duty to pay it to the party finally entitled thereto, and the statute of limitations did not begin to run until payment was demanded. It would hardly be contended that if this deposit had been made with the clerk of the court, as the statute requires, that officer could at the close of the litigation, regardless of any statute requiring him to pay the money, refuse to pay it over because it had been on deposit for more than six. years, and there is little difference between the two situations.

The cases of Shoemaker v. Hinze, 53 Wis. 116, 10 N. W. 86, and Curran v. Witter, 68 Wis. 16, 31 N. W. 705, relied on by the appellant, have no application to this ease. In each of those the relation of debtor and creditor existed between the depositor and the depositee as soon as the deposit was made, and action might be commenced at once to recover the amount so deposited. In the case before us a sum of money was deposited for the specific purpose of being paid to third parties on their complying with a prescribed condition. The plaintiffs could not accept and McLeod could not withdraw the deposit without waiving their rights to litigate the issues in the case, and it is perfectly plain that McLeod had no right of action against Scmborn until after making a demand for the return of the money. Sec. 4222, Stats. (1898), commences to run only after the cause of action has accrued. There was no cause of action until Sanborn was guilty of some default. McArthur v. Moffet, 143 Wis. 564, 571, 128 N. W. 445; Comm. v. McGowan, 4 Bibb (Ky.) 62; Cooper v. Cooper, 61 Miss. 676, 696. There was no deniaTof plaintiffs’ right on Sanborn's part until he refused to comply with the demand made upon him.

It is insisted that plaintiff cannot recover because of the champertous agreement between McLeod and McDonnell and Irvine. We do not see how this agreement affected the contract between McLeod and the defendant. If the Emersons had themselves accepted the money and insisted on retaining it while they were trying to prevail on the champerty issue, we Apprehend the court would make short -shrift of that issue. As a matter of fact they did not attempt the impossible feat of keeping their cake and eating it at the same time. They directed the return of the money when the champerty issue was raised. We find no error in the record.

By the Court. — Judgment affirmed.