Philleo v. Hiles

ByaN, O. J. This action is brought under sec. 35, ch. 22 of 1859, to bar the title of the former owner as against the respondent’s tax deeds. The court below refused to allow the amended answers, upon the express ground that the defenses set up did not come within the enumerated defenses of sec. 38, which can be made without deposit of the amount of the tax sale, etc. This appeal is, therefore, embarrassed by no question of discretion. Section 35 has often been before the court. Wakeley v. Nicholas, 16 Wis., 588; Wilson v. Jarvis, 19 id., 597; Smith v. Smith, id., 615; Grimmer v. Sumner, 21 id., 179; Johnston v. Oshkosh, id., 186; Finney v. Ackerman, id., 268; Burrows v. Bashford, 22 id., 103; Knight v. Barnes, 25 id., 352; Truesdell v. Rhodes, 26 id., 215; Merton v. Dolphin, 28 id., 456; Lybrand v. Haney, 31 id., 230; Dayton v. Relf, 34 id., 86; Warner v. Trow, 36 id., 196; Loomis v. Rice, 37 id., 262; and doubtless in other cases. It gives the grantee in a tax deed, certainly in some cases, a choice of legal and equitable remedies to enforce his title against the former owner. And sec. 38 limits defenses in the equitable suit [530] under sec. 35; excluding legal defenses which would be good without condition in an action at law, unless the defendant deposit the amount of the tax sale, interest and cdsts. TJpon a hasty examination of the cases, we do not find any suggestion of the incongruity of different legal effect of tax deeds in different proceedings to establish them; or discussion of the legislative power to abridge the legal rights of defendants, upon election of plaintiffs to proceed in equity. Some such doubt would appear to have been in the mind of Mr. Justice Cole, while writing the opinion in Warner v. Trow, supra, although not expressed. We need not consider these difficulties in the present case, because we consider the defenses proposed to be set up as within the spirit of the statute. It is our duty to give construction to a statute, if we can, that it may stand, and if the defenses here were excluded by the statute, a very grave question of the validity^of the statute would arise. The defense proposed to be introduced appears to go upon the total lawlessness and invalidity of the assessments on which the tax deeds, or some of them, are founded; attaching the assessments by averments which bring them within Hersey v. Supervisors, 37 Wis., 75, and probably within Marsh v. Supervisors, decided at the same time with this appeal [ante, p. 502], In the latter case, as indeed in several previous cases cited in it, it is held that, under the constitution, a fair and equal assessment, made in compliance with the statute, can alone support a valid tax; and that without such assessment there can be no tax. It is not easy to perceive how any court of law or equity could be expected to uphold a tax deed, and to foreclose the right of the true owner against it, where no tax had been levied on the land; or to require payment of a pretended tax, as a condition precedent to the defense that there was no tax to support the alleged tax deed; or to hold any statute authorizing such things a valid enactment. It is true that such is [531] not one of the enumerated defenses of sec. 38, which may he made without deposit. But the omission shows that the legislature, in giving the action to the grantee of the tax deed, presupposed a tax to support it. Eor, without a tax, there cannot properly he a tax deed. "Where there is no tax, a paper formally executed in the likeness of one, has, against the true owner, no legal or equitable attribute of a tax deed. And the defense of the proposed answer in this case is admissible, without deposit, not so much because it goes to bring the defendant within sec. 38, as because it goes to take the plaintiff out of sec. 35. To require prepayment of the amount of tax sale, in such a case, would be to create a lien on land, not by a tax, but by a tax sale, where there had been no tax. See Siegel v. Supervisors, 26 Wis., 70. This construction appears to be quite consistent with the views which the court has always taken of the section. “ It is to cut off all merely technical defenses, not going to the groundwork and justice of the proceedings, and to compel payment of taxes in all cases where equity and fair dealing require that they should not be avoided.” Wakeley v. Nicholas; Wilson v. Jarvis; Smith v. Smith; Knight v. Barnes, supra. In Dayton v. Relf, supra, the defendant set up a widow’s unexpired right of redemption, as a defense to an action under sec. 35, without deposit; and this court held the defense to be well taken, although not within the letter of section 38; chiefly on the ground that the section could not cut off a meritorious defense of such a nature. In order to support the validity of section 35, every defense which goes to the groundwork of the tax must be admitted, without deposit, although not enumerated in sec. 38. Technical defenses only are required to be accompanied by deposit. By the Court. — The order is reversed, and the cause remanded to the court below for further proceedings in conformity with this opinion.