Taylor v. Roundtree

Cole, J. Unquestionably the jury must have found, under the instructions of the court, and upon the issues submitted, that there was a good and valid redemption of the land. The plaintiff was a -minor when the lands were sold and tax deeds executed. This fact is abundantly established by the evidence,' and is really not seriously questioned. The court declined to instruct the jury that the various attempts to redeem the land, whether made by the administrator or guardian, at the times and in the manner detailed in the evidence, or whether made by persons acting for the plaintiff, by offering to pay the defendant a sufficient sum to redeem, which the defendant refused to accept, were in law valid offers to redeem, or were equiva [397] lent to a redemption. Whether the court was right in these rulings we need not inquire, because as a matter of fact the jury did find that the land described in the complaint was redeemed from the tax sales and tax deeds within one year after the plaintiff attained the age of twenty-one. And this redemption was doubtless found by the jury upon the evidence under the fifth special instruction given at the request of the plaintiff. That instruction is, we think, sound as a legal proposition, and the payment by Simpson to Murphy, who was acting as deputy clerk of the county board, would be a valid redemption, whether he was a legally appointed deputy or not. So that, assuming as a fact, as we think we must do upon the record, that there was a valid redemption of the land within one year after the plaintiff attained the age of twenty-one, the question arises, Can he maintain this action to cancel the tax deeds, as constituting a cloud upon the title ? It is claimed, on the part of the defendant, that plaintiff has not such a possession as will entitle him to that relief. The lands were wild, uncultivated prairie, and not in the visible or actual occupation of any one. It appears that the lands belonged to Joseph Taylor, who died intestate in 1850, leaving the plaintiff, his only child, about nine years of age. The administrator of the estate of Joseph Taylor acted up to 1859, and doubtless intended to pay all taxes assessed against the land, but, through some mistake, failed to pay the taxes of 1854. He says that while he continued administrator he sold the grass upon the land to John "Watson. The guardian of the plaintiff was appointed in 1859, and he says that he likewise let Watson have the grass upon the land for looking after it. But, as the prairie was open and unfenced, there was no occupation or acts of ownership of such nature and notoriety as to give publicity to the possession, such as it was. The tax deeds of the defendant were recorded in May and August, 1859, and the jury probably found that the lands were redeemed in July, 1863, when Simpson, on behalf of the plaintiff, deposited with Mur [398] phy a sufficient amount to redeem from the sale of April 10th, 1856. And the question is, Do these various acts of ownership over unimproved lands, and the redemption from the tax deed.?, show such a possession in the plaintiff as will enable him to maintain an action to remove a cloud upon the title ? We are of the opinion that they do. The title taken by the defendant by virtue of the tax deeds, was a conditional one. Wright v. Wing, 18 Wis., 45. If no redemption had been made, the estate would have become absolute in him. But the plaintiff having redeemed within the time and in the manner prescribed by law, the interest acquired under the tax deeds became revested in him. There was no actual possession under the tax deeds, but only such constructive possession as followed from the recording of those deeds. And when the redemption was made, and the title became revested in the plaintiff, this possession still followed the legal title as an incident of the ownership. The plaintiff is therefore entitled to all the legal remedies which a conveyance of wild and uncultivated land gives the owner who has exercised such occasional acts of ownership over the property as are detailed in the evidence. And consequently the question is, Can a person so situated in respect to real estate, maintain an action to quiet title by removing a cloud hanging over it, either under the jurisdiction of a court of equity or under section 29, chapter 141, R. S. ? It is claimed on the part of the defendant, that he cannot, but that he must have actual, open and notorious possession in order to be entitled to this remedy ; and a number of the decisions of this court are relied on in support of this position. The cases cited are Jones v. Collins, 16 Wis., 594; Stridde v. Saroni, 21 id., 173; Grimmer v. Sumner, id., 179; and Meadc v. Black, 22 id., 241. In Jones v. Collins, the action was brought by the original owner, against the parties claiming under the tax deed. It appeared that the original owner had remained in possession, and continued to exercise acts of ownership over the land, after [399] the tax deeds were recorded. It was a case much, like the present, with, this distinction, that there the acts of dominion and ownership, exercised over the property by the original owner, were more open, notorious, and connected, than in the case before us. The court held that the plaintiff had such title and possession as would enable him to maintain the action. In the case of Stridde v. Saroni, the undivided half was in the actual possession of the defendant, holding adversely to the plaintiff, and as to that half the relief was denied. The case of Meade v. Black really rests upon the same principle. In Grimmer v. Sumner, I do say that an action under section 29, chapter 141, can only be brought by a party in the actual possession of the land and having the legal title. That was a point not very carefully considered in that case, because it was apparent that the action was brought under the provisions of chapter 22, laws of 1859,. by the grantee in a tax deed to foreclose the interest of the original owner. The plaintiff had never taken possession under his tax deed, and the entire scope and object of the action were, to avail himself of the remedy given by the law of 1859. And when pressed by the difficulty that the law of 1859 did not apply to the tax deed in that case, he attempted to sustain the action as one to quiet title. Our attention was more particularly directed to the question whether the law of 1859 applied to the case, and as our views were adverse to the plaintiff upon that point, the decision might properly have rested there. What was subsequently said in the opinion was in answer to suggestions of counsel that the action might be treated as one to quiet title. At all events, under the circumstances, we do not feel like regarding the case as an authoritative decision of the question, that a party having the title to real estate can maintain an action to remove a cloud upon the title, only where it appears that he is in the actual, open and notorious occupation and possession of the premises. Here the redemption from the tax deed is an extrinsic fact, which must be proven. If the plaintiff should attempt to sell the property, the objection doubt [400] less would be made that the record showed tax deeds upon it. The fact that redemption had been made would be a matter in pais. And reason and principle would seem to favor the exercise of the jurisdiction of the court to cancel the tax deeds as constituting a cloud upon the title, although the plaintiff is not in the actual occupation and possession of the premises. Note. In Wats vs. Grosvenor (30 Wis.), the court' held that actual possession is necessary to enable tbe plaintiff to maintain the action under sec. 29, ch. 141, R. S.; overruling as to that point the above case. — Rep. 'We are therefore of the opinion that the judgment of the circuit court must be reversed, and the cause remanded with directions to grant the plaintiff the-relief asked in the complaint. By the Court. — So ordered.