Baker v. Supervisors of Columbia County

Cole, J. Tbe circuit court permitted tbe county to file an447 answer setting up tbe defense of tbe statute of limitations; but under tbe circumstances we do not think there was any abuse of discretion in allowing this to be done. Tbe appeal was from tbe action of tbe board disallowing tbe plaintiff’s claim, and it did not appear upon wbat ground tbe claim was rejected. It is stated in tbe affidavit of tbe attorney for tbe plaintiff, that tbe claim was not disallowed by tbe board because tbe statute of limitations bad run upon it. But.still, when tbe cause was appealed to tbe circuit court, it was proper enough that tbe grounds of defense should appear in formal pleadings. Tarbox v. Supervisors of Adams Co., 34 Wis., 558. Under the decision in Barden v. Supervisors of Columbia Co., 33 Wis., 445, the tax certificates were void for tbe reason that tbe cost of tbe revenue stamp was included in tbe amount for which tbe land was sold; and this action, like that, is brought under tbe provisions of ch. 22, Laws of 1859, to recover back tbe money paid on these void certificates. Tbe counsel for tbe county insists that tbe action'is barred by ch. 112, Laws of 1867, and that none of .the certificates come within the exception contained in this and tbe amenda-tory act of 1868 (cb. 56). In tbe law of 1867 it is in substance enacted, that no tax deed shall be issued on any tax certificate after six years from tbe day of sale of tbe lands for tbe delinquent tax; and tbe act further provides that “ no action either at law or in equity shall be commenced on such certificate after tbe expiration of six years from tbe said day of sale.” There is a proviso that tbe act shall not apply to a certificate owned by any county or municipal corporation, or by their assignee until tbe expiration of six years from tbe date of the assignment of tbe certificate. But sb far as certificates .Nos. 1145, 743, 758, 615 and 505 are concerned, we cannot see why this act does not bar a recovery upon them. This action is one at law brought directly upon tbe certificates, and comes within tbe very terms of the act. Tbe oldest cer [448] tificate is dated May 10, 1864, and there was, therefore, more than two years for the party to bring his action after the law took effect. This was certainly a reasonable time for enforcing the right before the bar of the statute would run. The law is well settled, that a right of action already accrued may be barred, providing a reasonable time be given after the passage of the act for a party to prosecute. Parker v. Kane, 4 Wis., 12; Von Baumbach v. Bade, 9 id., 559; Smith v. Packard, 12 id., 371; Howell v. Howell, 15 id., 55; Mecklem v. Blake, 22 id., 495. In the opinion in the case of State ex rel. Wolff v. The Board of Supervisors of Sheboygan Co., 29 Wis., 79, the remark is made that the acts of 1867 and 1868 do not profess or attempt to limit the liability of the county to refund moneys due upon defective tax certificates, to six years. This was not the real rpiestion upon which the case ivas decided, and in drawing up the opinion I overlooked the' second clause of the section, assuming that the only object of the act was to limit the time for issuing tax deeds upon tax certificates. But further examination satisfies me that this is not the only object and intent of the act, but that it extends to an action against the county to recover money j>aid on invalid tax certificates, unless the case falls within one of the provisos. I therefore fully agree with my brethren that the remark made in the Wolff case, above referred to, is misleading, incorrect and should be overruled. It appears that the land embraced in tax certificate No. 1245 was bid in by the county; but whether the certificate was assigned six years before the commencement of the action, the evidence does not disclose. We cannot, therefore, determine whether that certificate comes within the saving clause of the act. In attempting to sustain the plaintiff’s right to recover under secs. 26 and 27, cli. 22, supra, it was insisted that the statute of limitations did not begin to run until the error in the tax proceedings, or the invalidity in the certificate or tax [449] deed, was “ discovered.” But the language in hoth the law of 1867 and that of 1868 is clear and positive that the action shall he barred “ after the expiration of six years from the sadd day of sale.” But were it otherwise, and did the case rest wholly upon the construction to he given secs. 26 and 27, we should he compelled to hold that they refer to a “ discovery ” of - some error or mistake of fact, not to a mistake or error of law. In the case of Hutchinson v. The Board of Supervisors of Sheboygan Co., 26 Wis., 402, the question was, whether the grantee in a tax deed had such clear and positive information or knowledge of a fact as to set the statute running. The majority of the court held that the information or notice which he received upon the subject of the payment of the tax did not amount to such a “ discovery ” or knowledge of the fact as would set the statute running against him. And that decision accords with our present view, that these sections have reference to “ discovery ” of some matter of fact, and not of law, which renders the tax, or sale, void. By the Court. — -The judgment of the circuit court is reversed, and the cause remanded for further proceedings.