Clarke v. Lincoln County

Cole, C. J. So far as this case .is concerned it makes but' little difference whether we-consider it on the demurrer, or on-the answer and the finding of the court. The result will be the same in either view. The action is to cancel tax certificates issued on the sale of plaintiff’s lands for taxes, May 11, 1875, and May 9, 1876. In both the demurrer and answer the objection is taken and relied upon, that the action was not commenced within the time limited by section 7, ch. 334, Laws of 1878, and is therefore barred. Under that statute, the time for bringing .the action would expire on the 25th of December, 1878, of after the lapse of nine months from the daysthis statute took effect. There can be no doubt but that' this enactment continued in force or was applicable to the case. Indeed, it has in effect been so decided in Mead v. Nelson, 52 Wis., 402; Smith v. Janesville, id., 680; Dalrymple v. City of Milwaukee, 53 id., 178; Manseau v. Edwards, id., 457; Smith v. Sherry, 50 id., 210. We have said that both the demurrer and answer refer to section 7, chapter 334, as barring the action; and this was undoubtedly a sufficient reference to the statute relied upon as limiting the right' to sue. On the demurrer it is suggested, non constat but the action was commenced in time; But the complaint states that by a resolution of the county board, passed March, 1879, the board refused to instruct the county clerk to issue deeds upon these tax certificates. And the counsel for the defendant insists that the only fair inference which can be drawn from this allegation [580] in the complaint is, that the action was certainly not commenced until after the passage of this resolution. It is undoubtedly correct to say that when i-n a pleading any fact'is set forth as having occurred at specified time, the presumption is .that the action was not commenced until after that time. Therefore, we are inclined to hold that it did sufficiently appear upon the face of the complaint that the action was barred, so that the objection could be taken on demurrer. But, however that may be, it was stipulated that the action was in fact commenced by service of summons on the county clerk on the 11th of March, 1879, and that this stipulation should become a part of the record proper, and be considered by this court. The learned counsel who argued the case for the plaintiff in this court was candid enough to admit that the judgment was indefensible and must be reversed. There can be no doubt that this admission was not improvidently made, in view of the acts of the legislature and the decisions of this court upon them. The learned circuit court erred in cancelling the tax certificates and granting the plaintiff the relief asked. By the Court.— The judgment of the circuit court is reversed, and the cause remanded with directions to dismiss .the complaint.