Falkner v. Dorman

By the Court, Cole, J. To establish his claim of title, the plaintiff in error, and plaintiff below, offered in evidence a tax deed, executed, acknowledged and recorded on the 30th day of April, 1853 ; which deed was in the form prescribed [392] by chapter 503, Session Laws, 1852. The deed had been recorded more than three years before the commencement of the suit, and being objected to generally, by the counsel for the defendant, was ruled out by the circuit court as not being competent evidence in the cause. The correctness of this ruling of the circuit court is the only question we have to consider at this time. It was insisted that the deed was not admissible in evidence because it did not show on its face that it was executed under, and in pursuance of the special power given by the statute. But upon comparing the deed with the form given in section five (5) of the act of 1852, we do not see but it substantially complies with the form therein prescribed, and probably is a good and sufficient deed in this respect. For we suppose a deed made in strict conformity to a particular form prescribed by the statute to be observed, in the execution of deeds, must be held valid as far as the form is concerned. But there is another objection to this deed, which to our minds is insuperable and renders the deed unavailable to the plaintiff in this action, and it is this: The deéd was recorded more than three years before the commencement of the suit. By section 123, chapter 15, R, S., it is provided that any suit or proceeding for the recovery of lands sold for taxes, except in cases where the taxes have been paid or the lands redeemed as provided by law, shall be commenced within three years from the time of recording the tax deed of sale, and not thereafter.” Here is a suit to obtain posession of land sold for taxes, commenced more than three years from the time the tax deed was recorded. Is not the action barred by the above provision of the statute ? In the case of Edgerton, administrator, &c., vs. Bird, decided at the last term of this court, we had occasion to put a construction upon this provision of the statute. The defendant in that case had been in the actual and undisturbed possession [393] of the land in controversy, under a recorded tax deed, for about fifteen years, and had made valuable improvements, and she set up in defence this tax deed, and relied upon the same to defeat the action. And this court felt compelled to hold that the defence must prevail under this section of the statute. We could see no possible escape from it unless we practically nullified and repealed an act of the legislature. The language of the statute appears to be clear, distinct and unambiguous, and to create a complete bar to any suit to recover lands sold for taxes, (except in the cases therein mentioned,) after three years from the time of recording the tax deed. It was insisted that this provision could only operate in favor of the person claiming under the tax title, and that the party in possession was estopped from defending against the tax deed, three years having elapsed since it was recorded. But we are of the opinion that if any force and effect is given to this provision of law, it must be considered as a statute of repose, operating in favor of the person in possession of the lands which have been sold for taxes, barring an action upon a tax deed commenced after three years from the time such deed was recorded, as well as enuring to the benefit of a person in possession under such tax deed for the period limited for bringing the suit. We see no other fair and reasonable construction to be given to the statute. It is too late to contest the power of the legislature to pass statutes of limitation-In the case of Parker vs. Kane et al., 4 Wis. 1, this court held that it was the province of the legislature to prescribe the manner and time in which remedies in our courts should be pursued, and that a statute of limitation was constitutional if some remedy be given by it, and a reasonable time within which such remedy might be enforced. The plaintiff in error has neglected to assert his rights under the tax deed and to bring his action within the time fixed by law, and conse [394] quently is barred of his remedy. It is a matter resting in the sound discretion of the legislature which may take into consideration the nature of the titles, the situation of the country and the mischiefs to be guarded against, to determine the period to which a party’s right of action shall be limited for the recovery of the possession of real estate. Having in the case of lands sold for taxes fixed the period at three years from the time the tax deed is recorded, we can only sustain the law as we find it on the statute book. These remarks, it is believed, sufficiently dispose of the present case, and the following one on the calendar. The judgment of the circuit court is affirmed.