Link v. Doerfer

EyaN, C. J. The controlling question in this case is, whether the possession of Hilbert, the grantee in the tax deed, was such as to impose upon him a duty to pay the taxes for nonpayment of which the deed issued. Whitney v. Gunderson, 31 Wis., 359. And on the character of this possession, there is singular poverty of proof. There is no evidence tending to show [394] whether Hilbert entered in subservience or adversely to the title of the respondent; or whether he claimed any or what right of possession, before he took the tax deed; or whether the premises were assessed to him for the tax for which the deed issued. Perhaps proof that the premises had been assessed against liim for the tax would have been immaterial, without further proof that Hilbert claimed as owner. Eor it appears that the statute in force at the time required land to be listed to the owner only, and not to the occupant. Sec. 23, ch. 167 of 1859, amended by subd. 9, sec. 1, ch. 295 of 3860. See the revised statute, sec.' 23 of ch. 386 of 1860. We entertain no doubt, indeed, that when one enters upon land under claim of title in fee, and continues the possession and the claim, so as to set section 8 of the statute of limitations running in his favor, he might be taken as the owner for all purposes of taxation. Eor he could not be tolerated to claim under one statute that he is owner, and under another statute that he is not. Eor the purposes of taxation, such a tenant of land might be taken at his word thgt he is owner. After long possession under claim of title not resting in writing, within sec. 8, it might be difficult to establish the precise character of the entry. And so the section appears to imply a presumption of fact, subject of course to be rebutted, that after continuous occupation under claim of title for twenty years, the entry shall be deemed to have been adverse. Put such a presumption would only shift the onus prohan&i; and does not disturb the rule that the entry controls the claim of title under it. Pepper v. O'Dowd, 39 Wis., 538. But the presumption is founded on continued possession under claim of title for twenty years, and does not arise until the statute has run upon it. It does not sooner arise upon claim of title, and does not arise at all without claim of title. Upon the possession of Hilbert, as far as disclosed in this case, the stat [395] ute would not run. It could not operate by any lapse of time to toll an entry. So far as tbe record discloses, Hilbert took possession of unoccupied premises, without color or claim of title, and so possessed them from his entry to the date of the tax deed. So far as the record discloses, he claimed no right in the premises before he took and recorded his tax deed. The taking of the tax deed is presumptively inconsistent with any previous claim of title in himself. And we cannot assume, in the absence of all evidence, that he had before set up any claim of title. He appears to have been a mere intruder. Intrusio est ubi quis, cui nullum jus competit in re nec scintilla juris, possessio-nem vacuam ingredibur, quce nec corpore nec animo posside-tur, sicut hereditatem jacentem. Bracton, Book IY, ch. 2, £ol. 160. In Book II, ch. 17, fol. 39, of the same work, possession is called nuda, ubi quis nil juris habetin re,nec ali-quam juris sci/ntillam, sed tantum nudam pedum positi-tionem. Such intrusion has always been held prima facie subservient to the legal title. Jackson v. Waters, 12 Johns., 365; Jackson v. Thomas, 16 id., 293; Jackson v. Camp, 1 Cow., 605; La Frombois v. Jackson, 8 id., 589; Ricard v. Williams, 7 Wheat., 59; The Society etc. v. Pawlet, 4 Pet., 480; Bradstreet v. Huntington, 5 id., 402; Jackson v. Porter, 1 Paine, C.C., 457; Markley v. Amos, 2 Bailey, 603. “And no ouster can be presumed in favor of such a naked possession.” Stoby, J., in Society etc. v. Pawlet, supra. Though such naked possession is regarded as held in subservience to the legal title, and may subject the tenant to some form of action for the profits of the premises, yet it implies no privity of contract with the legal owner, or duty to pay taxes; nor does it preclude him from acquiring adverse title to himself, by tax deed or other conveyance. Blackwood v. Van Vleit, 30 Mich., 118; Blakeley v. Bestor, 13 Ill., 708; Moss v. Shear, 25 Cal., 38; Bowman v. Cockrill, 6 Kans., 311. [396] The general rule is well stated in Jackson v. Thomas, supra: “The principle, however, that possession must in its inception be adverse and continue so, is not well understood. In those cases in which that observation occurs, nothing had happened to change the character of the first possession, and that was considered as denoting guo animo the possession was held after the first entry. “ If one enter on land without any title or claim or color of title, the law adjudges the possession to be in subservience to the legal owner, and no length of possession will render the holding adverse to the title of the owner; but if a man enters on land, without claim or color of title, and no privity exists between him and the real owner, and such person afterwards acquires what he considers a good title, from that moment his possession becomes adverse.” . The record in this case discloses no obligation of Hilbert to pay taxes on the land, or disability to acquire adverse title under the tax deed. Ilis recording the tax deed was equivalent to a new1 entry, under claim of title; and from thence his possession was adverse. Pepper v. O'Dowd, supra. The precise question here has not been before this court in any previous case which we recall. But the principles on which the judgment of this case rests, have been recognized in many cases. Woodward v. McReynolds, 2 Pin., 268; Edgerton v. Bird, 6 Wis., 527; Smith v. Lewis, 20 id., 350; Sturdevant v. Mather, id., 576; Bassett v. Welch, 22 id., 175; Jones v. Davis, 24 id., 229; McMahon v. McGraw, 26 id., 614; Quinn v. Quinn, 27 id., 168; Frentz v. Klotsch, 28 id., 312; Whitney v. Gunderson, 31 id., 359. By the Cowl. — The judgment of the court below is reversed, and the cause remanded for a new trial.