Dayton v. Relf

Cole, J. It is urged in support of tbe complaint, that it states a case calling for tbe interposition of a court of equity. The relief asked is, that tbe court will grant a perpetual in-junctionrestraining tbe prosecution of an action previously commenced by the defendant Annexe Rdf against this plaintiff, on a tax deed, under tbe provisions of cb. 22, Laws of 1859. It is alleged that the plaintiff is the owner of the lands described in tbe tax deed, and was such owner when they were sold for taxes in September, 1869 ; that she was then and is now a widowed woman, entitled by law to the term of five years from the tax sale to redeem the lands; that tbe tax deed was issued in August, 1878, and an action was commenced by tbe grantee therein named against her for tbe purpose of barring her right, title and interest in tbe lands; and that the defendants in this suit threaten to move tbe former action to judgment, unless she put in her answer to said action and deposit forthwith tbe amount ■required by law to enable her to answer. This constitutes the. principal ground upon which equitable relief is sought in this suit. One of the objections taken to the complaint on demurrer is, that the plaintiff has a full and ample remedy for the protection of her rights in the action previously commenced by Annette Relf against her upon the tax deed, and that consequently this suit is unnecessary and vexatious. It seems to us that this objection is insurmountable, and must prevail. We are unable to perceive why the court in the action already commenced cannot do ample justice between the parties, and fully secure to the plaintiff her right of redemption. The law unquestionably gives her five years from the tax sale to redeem the lands. Ch. 89, Laws of 1868, amending sec. 20, ch. 22, [90] Laws of 1859. It is very plain that the grantee in the tax deed cannot abridge or destroy this right of redemption by commencing an action to bar the right and interest of the plaintiff. And we can see no difficulty whatever in the Way of the plaintiff making her defense in that .action. The proceeding to foreclose the tax deed is equitable in its character, and the court is clothed with all the power in that suit necessary for the purposes of justice and to protect the rights of the plaintiff. It is admitted that the doctrine is well settled that a court of equity will not interfere by injunction to stay proceedings in another equitable suit in the same court (Wilson v. Jarvis, 19 Wis., 597); but it is said that the court, in enforcing the remedy given by ch. 22, does not exercise an equitable jurisdiction. But this, we think, is a mistake. The relief granted or authorized by the statute is equitable relief. If the judgment is in favor of the plaintiff and against the defendant claiming the land in the tax deed, such judgment, by force of the statute, forever bars such defendant and all others claiming under him after the commencement of the suit, from all right, title or interest in said lands; and if the judgment is in favor of the defendant, such judgment shall direct the plaintiff to release to such defendant all right or claim to the lands under the tax deed. Secs. 44 and 45. These sections and other provisions of the law clearly show that the jurisdiction which the court exercises in the proceeding to foreclose the tax deed is to a certain extent equitable in its character (Wakeley v. Nicholas, 16 Wis., 588); and the power of the court in the action of Annette Belf against this plaintiff is entirely adequate and competent to protect her rights. There was therefore no necessity for the plaintiff to institute this suit to enjoin the action previously commenced, when she can avail herself of all her rights and defenses with full effect in the original suit. The counsel for the plaintiff suggests, however, that she would not be permitted to answer in the action to foreclose the tax deed, and set up the defense that she was a widowed woman [91] when the lands conveyed by that deed were sold for taxes, and that the period of redemption had not expired, unless she made the deposit required by sec. 38. As a condition to setting up certain defenses in the answer, this section requires the defendant to deposit with the cleric of the court in which the action is pending, for the use of the plaintiff, the sum for which the laud was sold, together with the interest thereon at the rate of twenty-five per cent, per annum from the date of the tax deed, and also all such sums as shall have been paid by the plaintiff for subsequent taxes, with the same rate of interest from the day of such payment. But we apprehend that this provision was never intended to apply to a case like the one before us, and to an action brought to bar the rights of the original owner, who still, by the statute, has the right of redemption. Eor, to give the statute the other construction, and hold that the remedy afforded by it might be resorted to before the period to redeem had expired, would, in many cases, greatly abridge and qualify this right. This court has held that the purchaser at the tax sale was entitled to a tax deed at the end of three years from the sale, although the right oE redemption might exist after the delivery of the deed. Wright v. Wing, 18 Wis., 45; Woodbury v. Shackleford, 19 id., 55. In such a case, of course the title of the grantee in the tax deed is liable to be defeated by a redemption made by the owner who still has that right. Now, the statute clearly provides that the lands of minors sold for taxes may be redeemed at any time before such minors come of age, and during one year thereafter; “and that the lands of idiots, married women, widowed women, and insane persons, so sold, or any interest they may have in the same, may be redeemed at any time within five years after such sale.” Ch. 89, supra. The plaintiff, according to the averments in the complaint, had until the 7th of September, 1874, to redeem her lands from the sale. And if that fact were made to appear in the action instituted upon the tax deed by Annette Relf, it would be a complete and perfect answer to that action. The [92] court in that case would be bound to dismiss the suit as prematurely brought. It surely could not proceed and give the authorized judgment, forever barring the plaintiff's interest, with-, out disregarding and annulling other provisions of the statute. These statutes are in pari materia, and refer to each other, and must be taken and construed together to arrive at the legislative intent. And, as it appears to us, it would be entirely inadmissible to hold, where the legislature has conferred upon the plaintiff — as it manifestly has by the law of 1868 — the clear and absolute right to redeem her lands at any time within five years from the tax sale, still that she shall not enjoy that right and have the benefit of that defense in an action brought on the tax deed under ch. 22, without first making the deposit required by sec. 88. We are entirely clear, therefore, that the provision in regard to making the deposit as a condition to the defendant’s answering, was never intended to apply to a case like the one before us, where the period of redemption has not expired. It is true, this matter set up as a defense will not avoid the tax deed, but will abate the suit. But the time which the law gives the plaintiff to redeem her lands from the tax sale may be important, and such a construction must be placed upon all the provisions as is consistent with the preservation of this right. And this can only be done by holding that the general language used in sec. 88, that “ no other defense to such action shall be set up in the answer of any defendant, unless the defendant setting up the same shall, at the time of filing the answer, make the deposit,” must be qualified and restrained so as to harmonize with the other provisions of the same statute. We are confident that this language was never intended to embrace a case like the one we are considering, where the period of redemption had not expired. Consequently our conclusion is, that this suit is entirely unnecessary, and that the plaintiff may avail herself of the benefit of her defense in the action brought against her upon the tax deed, without making any deposit, and that the court in that proceeding can sufficiently and ade [93] quately protect her rights. . This being so, it follows that tbe demurrer to the complaint should have been sustained. By the Court. —The order of the circuit court overruling the demurrer is reversed, and the cause remanded with directions to dismiss the complaint.