Capron v. Supervisors of Adams County

Cole, J. I. The stipulation entered into by tbe parties in open court effectually consolidated these causes, and they should have been tried as one, which would have resulted, of course, in one finding and one judgment. In no other way could full effect be given to the stipulation and to the order entered upon it. It is true, the stipulation provided that the consolidation should not affect the question of costs, but that the costs might be taxed by the prevailing party in the same manner as though the order ]jad not been made. It is not necessary to determine precisely what was intended by the clause in respect to costs; but certainly, for the purposes of trial and judgment, the actions were consolidated into one, and should have been so treated. The three separate findings and judgments were therefore, under the circumstances, irregular and erroneous. II. We are inclined to hold that there was an abuse of discretion on the part of the circuit court in refusing to permit the defendant to amend its answer by setting up the statute of limitations as to all the tax certificates. In this regard the case, we think, stands upon somewhat different grounds from an action between individuals. As between individuals we have held that there was no abuse of discretion in refusing to allow the defendant to amend his answer by pleading the statute of limitations (Fogarty v. Horrigan, 28 Wis., 142; Eldred v. Oconto Co., 30 id., 206; Meade v. Lawe, 32 id., 262), placing this defense upon the same ground as that of usury, which is often denominated an unconscionable one. But, as was observed by Dixon, C. J., in Orton v. Noonan, 25 Wis., 676, there should be some discrimination upon the subject, and much depends on the nature of the action. Where the action is against a county, founded upon stale tax certificates, [618] if leave to amend the answer by setting up the statute is aslced, we think it should be granted on suitable terms. In the case before us, the tax certificates were presented to the county-board at their annual session in 1874; the board allowed a part, and disallowed a part, but did not state in writing the ground of disallowance. The plaintiff appealed to the circuit court from the decision of the board disallowing the portion of his claim. No written complaint, -however, was filed, the verified account being treated as the complaint, as was done in Tarbox v. The Sup’rs of Adams Co., 34 Wis., 558. The defendant answered, (1) the general denial; and (2) the statute of limitations as to part of the plaintiff’s claim. Subsequently the defendant asked leave to file an amended answer setting-up the statute of limitations as to all of the certificates, which was objected to by the plaintiff on the ground that it would be an abuse of discretion to allow the amendment, and the objection was sustained. We have already said that this was error, and that the amendment should have been allowed. Baker v. Sup’rs Columbia Co., 39 Wis., 444. There are very cogent reasons for requiring diligence in enforcing claims against counties founded on void tax certificates, because provision is made in certain cases for including the taxes justly chargeable upon the land in subsequent tax rolls, so that the county may recover the money it has been obliged to refund. See Tay. Stats., ch. 18, §§ 180 et seq. The county, therefore, should have the benefit of the statute whenever it seeks to avail itself of it, even though as between individuals the defense is not one to be favored. It was claimed by the learned counsel for the county, that an action on the tax certificates was absolutely barred and prohibited by sec. 1, ch. 112, Laws of 1867, as amended by ch. 56, Laws of 1868. The language of the statute, he says, is negative and prohibitive, that “ no action either at law or in equity shall be commenced on such certificate after the expiration of six years from the said day of sale,” with certain ex [619] ceptions. The statute, it is claimed, entirely destroys the remedy after the lapse of six years from the sale, and amounts to a positive prohibition of the commencement of an action after that time. In the cases which have come before this court, it has been assumed, rather than directly decided, that the statutes of 1867 and 1868 were statutes of limitation, the same in character as the general statute upon that subject, and that like rules of pleading applied in both cases. Barden v. Sup’rs of Columbia Co., 33 Wis., 445; Tarbox v. Sup’rs of Adams Co., supra; Baker v. Sup’rs Columbia Co., supra; Eaton v. Sup’rs Manitowoc Co., 40 id., 668; Mead v. Sup’rs Chippewa Co., 41 id., 205; Marsh v. Sup’rs St. Croix Co., 42 id., 356. The phraseology of the statute was not, however, commented on to see if it afforded any ground for distinction between it and the general statute of limitation, or not. The position of counsel that these statutes annihilate the remedy after six years, and positively prohibit the action, is neither affirmed nor denied in this case. That question is purposely left open, to be considered when it shall arise. III. Some of the tax certificates in question were neither issued nor assigned to the plaintiff, and upon principle there could be no recovery upon them. The certificates should at least be assigned by the purchaser writing his name in blank on the back thereof, as provided in sec. 54, ch. 22, Laws of 1859, in order to enable the holder to maintain the action. It is true, in the amendment to sec. 26 of that chapter (ch. 68, Laws of 1870), the word “assignee” has been dropped. But still we have held, in the case of Hyde, Adm’r, v. Sup’rs of Kenosha Co. [ante, p. 129], that an assignee might recover upon the certificate when properly assigned to him. By the Court. — The judgments in the above cases are reversed, and the causes are remanded for further proceedings according to law.