Curtis v. Morrow

DixoN, C. J. It appears that there was a statute, not cited in the court below, authorizing the council of the borough of Fort Howard to levy a tax of five mills on the dollar valuation, for the purpose of repairing and improving streets, instead of one mill on the dollar valuation, as prescribed by the act of incorporation. Laws of 1861, ch. 76; Pr. Laws of 1856, ch. 535, § 27. This objection, therefore, upon which it is understood that the court below held the tax deed void, does not exist. And we have carefully considered the several other positions taken by counsel for the plaintiff, and think they are all correct, except the one respecting the oonsti669 tutionality of the act approved April 10, 1867 (Laws of 1867, ch. 113). We have already decided that act to be constitutional and valid, so far as it applies to sales made before its passage, where sufficient time remained after its passage and publication to enable the holders of certificates to give the required notice before deeds became due according to the terms of the certificates. State ex rel. Knox v. Hundhausen, 23 Wis. 508. And such was the nature of the certificate here. Sufficient time remained for the plaintiff to have given the proper notice, in case there was any person in the actual occupancy or possession of the land, as provided by the act, in order to make the notice necessary. The answer avers that all of the defendants, except the defendant Misha Morrow, were in the actual possession and occupancy as owners of certain definite portions of the land in question, for upward of six months prior to the date of the deed set forth in the complaint, and that none of said defendants were served with the notice required by the act. These averments of the answer were admitted by the plaintiff to be true, on the trial. The facts thus shown constitute an insuperable objection to the validity of the deed as against all the defendants so in possession of the land. The notice required by the act should have been given to them before any deed could lawfully issue cutting off their titles to the respective portions of the land of which they were owners. As to the defendant Misha Morrow, the averments of the answer (also admitted by the plaintiff on the trial) respecting his occupancy and possession of the land owned by him, are very different. They are, that he “ was in the actual possession and occupancy thereof for the period of thirty days and more, within six months preceding the expiration of the time for the redemption of said lands from the tax sale mentioned in the complaint,” and “for a period of thirty days and more, within six months immediately preceding the time when [670] the deed set forth in the complaint in this action was applied for; and that no written or verbal notice was served upon him.” These averments are like those considered by this conrt in State ex rel. Knox v. Hundhausen (ante, p. 196). They fail to show such a possession and occnpancy by the defendant Morrow as entitled him to service of notice under the act. The act requires the notice to be given at least three months prior to the time when the deed shall be applied for; and, to enable the holder of the certificate to do this, and to obtain his deed when the time for redemption expires, it is necessary that the actual occupancy or possession for the period of thirty days or more should have commenced at some time prior to the time when the notice is required to be served. An actual occupancy or possession for the last thirty days within the six months immediately preceding the expiration of the time of redemption, or for the period of thirty days or more at any time within the last three months of the six months, would not entitle the owner or occupant to notice. Such may have been the actual occupancy and possession of the defendant Morrow here ; and therefore it does not appear that the service of any notice upon him of the time when the deed would be applied for, was required by law. It follows from these views, that as to the defendant Morrow the judgment must be reversed, and a new trial awarded ; but that as to all the other defendants the judgment must be affirmed. By the Court. —It is so ordered.