Parish v. Eager

By the Court, Cole, J. It was suggested on the argument that the appeal in this case should be dismissed for several reasons. No motion was filed, however, and although there are some informalities and defects in the record, particularly in the justification to the undertaking, still we are not disposed to dismiss an appeal for such a reason, where the objection is taken ore tenus on the argument. And we are the more inclined to disregard the objection at this stage [537] of tbe case, for tbe reason, that if a distinct motion bad been made to dismiss tbe appeal on tbe ground that tbe undertak-. ing was defective, tbe party appealing would have been permitted to file a new undertaking. It was also objected that tbe printed case did not fairly, fully and truly present tbe material facts in tbe case according to tbe return of tbe clerk. This objection is not entirely without foundation, but still tbe printed case is not sucba departure from tbe rule as will authorize us in dismissing tbe appeal. Tbe case will, therefore, be disposed of on its merits. Tbe case comes up on an exception taken to tbe refusal of tbe circuit court to give tbe jury an instruction asked for on tbe part of tbe appellant; and also upon an exception which was taken to an instruction given. But one remark will be made upon tbe refusal of tbe court to give tbe instruction asked. That instruction contains several propositions of law and fact, and may not be strictly accurate upon tbe question of possession. It assumes that if tbe defendant below, or those under whom be claimed, have been in tbe open and notorious possession of tbe premises under tbe tax deed since 1854, or for three years previous to April 8th, 1859, then be could claim tbe protection of tbe three years’ limitation in bar of tbe suit. In one aspect of tbe case this would be in conflict with tbe decision of this court upon that point. See Edgerton vs. Bird, 6 Wis., 527; Falkner vs. Stevens, 7 id., 388; Sprecker vs. Wakeley, 11 id., 432; Hill vs. Kricke, id., 442. Tbe tax deed was placed upon record in January, 1845, and if tbe owner of tbe land was in tbe actual, notorious possession of it at that time, and continued so for three years thereafter, then, according to tbe doctrine of tbe above cases, be might claim tbe benefit of tbe statute. But when tbe premises are not in tbe actual possession of any one, then a recorded tax deed draws after it constructive possession, and is such an assertion of title on tbe part of tbe party claiming under it as to enable tbe rightful owner to maintain ejectment. Tbe bill of exceptions is silent as to whether any evidence was offered which showed who was in tbe actual possession of tbe premises — if any one was —intermediate tbe time when tbe tax deed was recorded and [538] ^ to assume there might have been testimony bearing upon that point, which rendered the instruction obj ectionable. With these observations we dismiss the consideration of the first exception. The court instructed the jury that the statute of limitations on which the defendant relied, was repealed, and that the tax deed from which, together with other records, he claimed title, was void, and was not such as the statute applied to if in force. This we deem erroneous. It appears that the land in controversy was assessed for taxes in 1842, and the taxes not being paid, the land was sold for the payment thereof. James P. Cox became the purchaser at the tax sale. He afterwards assigned the tax certificate to one Templeton, treasurer of the county, to whom the tax deed was executed by the clerk of the board of county commissioners in 1844, for the use and benefit of Grant county. The appellant traces title through various mesne conveyances from a deed executed by the clerk and agent of the county to one Andrews in 1854.. Now it is apparent that the validity of the original tax deed depends essentially upon the question, whether the county was authorized to take title to lands in this way ; and if so, whether the title became fully vested in it by the deed to Templeton. This is a question not free from difficulty. There was testimony introduced on the trial to show that Cox was appointed by the board of county commissioners as an agent to bid off for the county the lands for delinquent taxes, and that he purchased this tract in pursuance of such agency. We expected to find some express provision of law which authorized counties in 1842 to bid off land for- taxes when there was no other purchaser, but we have not found any such provision. I am confident it was the general practice to do so under the territorial government, whether it was authorized by any express statute or not. And the proviso in section 10 of the Territorial Laws of 1848-4, page 22, clearly recognizes the existence of such a practice, and regulates the terms upon which persons can redeem “ lands or town lots which have heen sold for taxes due thereon, to any county, town or village of the territory.” But perhaps it is not necessary to determine in this case [539] wbetber counties in 1842 could bid off lands for delinquent taxes and take the title, as is now done under our present system. For there is nothing in the tax certificate, as recited in the tax deed, which shows that Oox bid off the lands for the county. For aught that appears he might have purchased them as an individual, and afterwards sold and assigned the tax certificates to Templeton for the use and benefit of the county. We have then to inquire whether the county had capacity to lake and hold the lands under these circumstances. Section one of the “ act to define the general powers of counties,” &c., (Territorial Statutes of 1839, p. 102), declares that each county shall continue to be a body politic and corporate, with power to sue and be sued; to purchase and hold for the public use of the county, lands lying within its own limits, and any personal estate; to make all necessary contracts and to do all other necessary acts in relation to the property and concerns of the county. . The second section provides that “ all real and personal estate heretofore conveyed, or which shall be hereafter conveyed by'any form of conveyance, and duly acknowledged and recorded, to the inhabitants of any county, or to the county treasurer, or to any committee or other persons, for the use and benefit of such county, shall be deemed to be the property of such county ; and all such conveyances shall have the same force and effect as if they had been made to the inhabitants of such county by their respective corporate names.” Now while it might with much force of reason be contend- ' ed, that the power granted in the first section to purchase and hold lands for the public use of the county, had reference alone to such real estate as might be necessary and convenient for county buildings and other legitimate county purposes, and was not intended to authorize counties to bid off lands for delinquent taxes, still there is no limitation or restriction on the capacity of the county to take title under the last section. The county could take all real and personal estate which might be conveyed to it by any form of conveyance. It could take therefore whatever interest Cox had in the tax certificate which he assigned to Templeton, the [540] treasurer, for the use of the county. And when real estate . was conveyed to the treasurer for the benefit of the county, the statute declared it should be deemed to be the property of the county. So that even if it be conceded that the county could not directly bid off lands at the tax sale, still as it was purchased by an individual who assigned the certificate to the county, we can see no valid objection to the transaction. And the deed from the county would be good and effectual to convey the title to Andrews. "We-are therefore unable to see upon what ground the circuit court held the original tax deed void. And if not void, the statute of limitations would apply to it as well as to any other tax deed. For the purpose of showing that the sale of the land was void, evidence was offered on the trial which went to show that Parish, one of the owners of the land in 1842, had an ample amount of personal property out of which the tax could be collected. It is obvious that the question whether there was a sufficient amount of personal estate to pay the tax, was one for the jury. No instruction was asked for upon the po'int, or as to how this fact would affect the tax deed, if established to the satisfaction of the jury. "We do not therefore have to -consider whether an omission on the part of the taxing officers to collect the tax out of the personal estate, rendered the deed void under our three years limitation law. The other question raised by the instruction, namely, the effect of repealing a statute of limitations which has already run in favor of a party in possession of land under a tax deed, and giving a right of action, was fully considered in Sprecker vs. Wakeley, 11 Wis., 432. We there held that such legislation destroyed vested rights, and was void. It follows from these views that the judgment of the circuit court must be reversed, and a new trial ordered.