Sherry v. Gilmore

Taylor, J. The above statement of the evidence given on the trial is all that is deemed necessary for the determination of the questions involved in this appeal. The learned circuit judge found as a fact that the lands in question in this case were never attached .to the town of Weston so as. to become a part thereof, and it may be presumed, therefore, that upan the authority of Smith v. Sherry, 54 Wis., 114, he held that all the tax deeds issued to the defendants were void, and that there being an entire want of jurisdiction in the officers of the town of Weston to levy any tax upon such lands, the short statute of limitations did not and could not render them valid for any purpose. We think the learned circuit judge erred in holding that the lands were not a part of the town of Weston. The .proofs clearly show that they had been treated as a part of said town for nearly twenty years, before the plaintiffs’' .action was commenced, and for thirteen years before the taxes upon which the defendants’ oldest tax deed was issued were levied. After such lapse of time every presumption must be in favor of the regularity of the.proceedings which attached the territory to the town. There was no evidence given by the clerk of the board -of supervisors in this case which should have been held sufficient to overcome the presumption of the regularity of such proceedings. What he testified as to the want of proof of publication of the order attaching the territory to the town, was wholly insufficient — 330 — to overcome the presumption in its favor after such a lapse of time. The statute then in force did not require that any proof of publication should be made or filed with the county clerk, or with any one else. The only direction on the subject of preserving the evidence of the publication i's found in sec. 31, ch. 13, R. S. 1858 (1 Tay. Stats., 300, § 39). This section reads as follows: “Such clerk [meaning the county clerk] shall order a number of the papers containing any such orders or determinations sufficient to distribute one to each of the town clerks of his county, and so distribute them; and such town clerks shall, on receipt thereof, file the same in their respective offices.” From anything which was shown to the contrary by the evidence in this case, all this might have been done. The county clerk’s office was not the place to look for the proof of the publication of the order. The evidence that there was no plat made of the town, is, we think, not sufficient to overturn the presumption in favor of its being made under the circumstances of this case. We think the judge erred in his findings of fact upon this subject. , But admitting that his findings on these questions are supported by the evidence, we are of the opinion that, although the irregularities in the proceedings attaching the territory to the town of Weston were such as would justify a court in holding them irregular and void in an action in which they might have been drawn in question, commenced within a short time after the attempted attachment of the territory, yet after the public has acquiesced in the action of the county board for twenty years or more, it is too late to question the right of the town to exercise its jurisdiction over such territory. The lapse of time must be held to cure a defect of this kind in the organization of our towns, otherwise great public inconvenience would result. This is not a new question in the courts. It was considered to some extent by this court in Swain v. Comstock, 18 — 331 — Wis., 463. In People v. Maynard, 15 Mich., 470, it was held that where a town was organized by an act of the legislature which was unconstitutional, yet the town so attempted to be organized having acted as a town for ten years or more, and been recognized as such, it was too late to question its rightful organization. Justice Campbell, in delivering the opinion in the case, says: “If this question had been raised immediately, we are not prepared to say that it would have been altogether free from difficulty. . Rut inasmuch as the arrangement there indicated had been acted upon for ten years before the recent legislation, and had been recognized as valid by all parties interested, it cannot now be disturbed. Even in private associations the acts of parties interested may often estop them from relying on legal objections which might have availed them if not waived. But in public affairs, where the people have organized themselves, under color of law, into the ordinary municipal bodies, and have gone on year after year raising taxes, making improvements, and exercising their usual functions, their rights are properly regarded as depending quite as- much on the acquiescence as on the regularity of their origin, and no post faeto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can be no longer questioned.” The doctrine laid down in this opinion is sustained by an abundance of authority, and is undoubtedly most salutary. See Rumsey v. People, 19 N. Y., 41; Jameson v. People, 16 Ill., 257; People ex rel. v. Farnham, 35 Ill., 562; Bow v. Allenstown, 34 N. H., 351; Stuart v. School District, 30 Mich., 69; Fractional School District v. School Directors, 27 Mich., 3. These cases all sustain the doctrine announcéd in the opinion of Justice Campbell above quoted. By ch. 196, P. & L. Laws of 1862, the legislature recognize the existence óf the town of Weston with the township at332 tachecl by the order of the county board passed in 1860. Holding, as we do in this case, that by lapse of time the plaintiff has lost all right to question the regularity of the proceedings by which the township in which his land is situate was attached to the town of "Weston, we clearly carry out the policy of the state as expressed by the legislature in sec. 416, R. S. 1878, and especially by ch. 54, Laws of 1883, which was passed immediately after the decision of this court in the case of Smith v. Sherry, 54 Wis., 114. The circuit court erred in holding the defendants’ tax deeds wholly void by reason of the want of jurisdiction in the town of Weston to levy any tax on the lands in question. The only other questions in the case are — First, Was the defendants’ first deed absolutely void ‘for want of a grantee therein? second, Had the statute of limitations run in favor of the defendants’ first tax deed before the plaintiff commenced his action ? and, third, whether all the deeds were void by reason of the insufficiency of the affidavits of non-occupancy. If the first and second points are decided in favor of the defendants, there will be no necessity of considering the third, as the defendants’ first tax deed covers all the lands in controversy. Was the defendants’ tax deed void because the- grantee named therein was “ Gilmore cfi Ware ? ” We are clearly of the opinion that it was not. The grantee in the tax deed in question is described so as to indicate a partnership, and the evidence shows that at the time, of the delivery of the deed the defendants were partners, using the firm name of Gilmore c& Ware. A firm name is always held sufficient to designate the true name of all the persons composing the firm, and is always used in the transaction of the business of the firm. There does not seem to be any reason for holding that a partnership, in making a purchase of real estate for the benefit of the firm, may not do so in the same manner that they make their other purchases, viz., in the firm name. — 333 — 'The authorities cited by the learned counsel for the appellants fully sustain the sufficiency of the deed in this respect. Shaw v. Loud, 12 Mass., 447; Stroman v. Rottenbury, 4 Desaus. Ch., 267; The Lady Superior v. McNamara, 3 Barb. Ch., 380; Newton v. McKay, 29 Mich., 1; Staak v. Sigelkow, 12 Wis., 234, 242; Hogg v. Odom, Dudley (Ga.), 185. Was this action commenced within nine months after the passage and publication of ch. 334, Laws of 1878? This act -was published March 25, 1878, and the nine months would -expire December 24, 1878. The defendants’ first tax deed is ene which comes within the provisions of sec. 6 of said act •(sec. 1210d, E. S. 1878); and unless the plaintiff’s action was commenced on or before December 24, 1878, the statute has Tun in favor of such deed, and it cannot be avoided by showing that it was issued upon an insufficient affidavit of non-occupancy. The want of a sufficient affidavit, or the entire lack •of one, would be a mere irregularity, and cured by the statute. Was this action commenced before December 25,1878, within the meaning of secs. 4239, 4240, which define what shall be deemed a commencement of an action within the meaning of the statutes of limitation? It is evident that it was not •commenced by the actual service of the summons upon either ■of the defendants before that date. If we would be justified in presuming that the summons and complaint were received by one of the defendants December 24, 1878, by mail, that would not be a service of the summons within the meaning •of the statute. The service spoken of in sec. 4239 evidently means a service made in accordance with the provisions of ■sec. 2636, E. S. 1878. It is very clear that a suit cannot be commenced by simply sending a copy of the summons to the ■defendant through the mail. Under sec. 4240, “ an attempt to feommence an action shall be deemed equivalent to the commencement thereof, within the meaning of any provision of law ■which limits the time for the commencement of an action, when the summons is delivered with intent that it — 334 — shall be actually served to the sheriff or other proper officer of the county in which the defendants, or one of them, usually or last resided; . . . or, if such defendant be a nonresident, ... to the sheriff or other proper officer of .the county in which plaintiff shall bring his action.” The above quotation contains all of sec. 4240 which has any application to this case. The evidence in this case fails entirely to show that there was an attempt to commence this action, within the meaning of this section, previous to December 25, 1878. It is true that a summons and complaint were filed in the office of the clerk of the circuit court of the county in which the action was commenced, on December 24, 1878, and that an order of publication was obtained on that day; but it does not appear that the summons was placed in the hands of the sheriff or other proper officer of the county in which the action was commenced at any time, nor in the hands of the sheriff of the county in which the defendants or one of them resided at the time, until long after the statute had run. . If we were to treat the action as properly commenced against the defendants as nonresidents of the state, and that a proper order of publication was obtained,— still the fact that the summons was not placed in the hands of an officer of the county in which the action was intended to be commenced, would be fatal to the claim thatt there was an attempt to commence the action within the meaning of sec. 4240. It becomes unnecessary, therefore, to determine whether the order of publication was regularly made, or whether the subsequent order of the circuit court setting it aside, and declaring it void and of no effect, was erroneous. The respondents having failed to show that their action was commenced within nine months after ch. 334, Laws of 1878, took effect, all defects and irregularities in the appellants’ first tax deed were cured, and the title of the respondents was thereby divested, and absolutely became vested in — 335 — the appellants. Upon the evidence, the judgment should have been in their favor. By the Court.— The judgment of the circuit court is reversed, and the cause remanded with instructions to the circuit court to enter -a judgment dismissing the complaint, unless, upon application therefor by the respondents, showing sufficient 'grounds, the said court shall grant them a new trial.