Finney v. Ford

DixoN, C. J. Action under chap. 22, Laws of 1859, to bar the interest of the original owners, and those claiming under them, in lands sold for taxes. The suit was commenced and process served in May, 1865; and, the appellants not having appeared or answered, judgment by default was entered on the 1st of July following. The lands in contro 174 versy are within the corporate limits of the city of Oshkosh; and the complaint is upon, five several tax deeds, each of which is counted upon separately. Three of the deeds were executed by the clerk of the board of supervisors of the county of Winnebago, and the other two by the treasurer of the city of Oshkosh. The former were within the remedy given by chap. 22, but the latter were not, as was decided by this court in Grimmer v. Sumner, 21 Wis., 179, and Finney v. Ackerman, id., 268. The defendants bring this appeal, claiming that the judgment should be entirely and absolutely reversed. We are of a contrary opinion. As to the three deeds executed by the clerk of the county board of supervisors, good causes of action are stated, and so far the judgment should be affirmed; but as to the deeds executed by the city treasurer, the complaint contains no cause of action, and the judgment ought to be reversed. The appellants are therefore entitled to a reversal or modification of the judgment as to the two last named supposed causes of action. The costs in this court are the same, whether a judgment is reversed or only modified. Both orders carry full costs. It is more convenient in practice, in cases like this, to wholly reverse the judgment, and remand the cause with directions that the proper judgment be entered, than to partially reverse or modify it. We accordingly reverse the judgment, and remand the cause with directions that the complaint be dismissed as to the two counts upon the tax deeds executed by the city treasurer, and that the plaintiff have judgment upon the other three counts according to the statute and the rules and practice of the court. See Van Norstrand v. Mansfield, 16 Wis., 224, and Hait v. Houle, 19 Wis., 475. The plaintiff claims title as grantee of the grantee named ■in the tax deeds; and a question is made, whether he is within the provisions of section 85 of the act (chap. 22 above cited), which gives a right of action to the grantee 175 named in any deed of conveyance made by tbe clerk of the board of supervisors of any county, etc., “his heirs, executors or assigns.” We have no doubt that the plaintiff is an “ assign,” within the meaning of the statute, and as such entitled to avail himself of the remedy. By the Court. — Judgment reversed, and cause remanded with directions accordingly.