Geisinger v. Beyl

Cassoday, J. This is an action of ejectment tried by a jury over eleven years ago. The verdict was to the effect that the plaintiff was the owner in fee and entitled to the possession. That verdict has never been set aside. Notwithstanding these facts, the judgment appealed from was entered last October, and is in favor of the defendant, and dismissed the action with costs. This is said to have been done by reason of the failure of the plaintiff to pay taxes as required by the order of October 26, 1876. That order is said to have been made in pursuance of ch. 270, Laws of 1874, which, in effect, “provided that in all actions of ejectment now pending, or hereafter brought, when the court or jury find that the plaintiff is entitled to recover the lands claimed, ... by reason of a defect or insufficiency of. any tax deed under which the defendant claims title to such lands, ... it shall be the duty of the court in which such action is tried, unless it shall be made to appear affirmatively by the plaintiff that such lands were not liable to taxation for the tax for which they were sold, or that such lands were redeemed from such sale, or that the taxes for which such lands were sold had been paid, to cause an order to be entered that the plaintiff have judgment to which he has shown himself entitled, upon the payment to the defendant, within ninety days, of the amount ” of such taxes, interest, and penalty as therein prescribed, and that, if the plaintiff fail to so pay, then that his action be dismissed with costs, and any further action for the same cause be thereby barred. The questions'to be considered are — First, whether there is anything in the record to bring the case within the operation of this act, and, secondly, if not, whether the judgment is to be sustained upon mere presumption. There is no bill of exceptions. The appeal, therefore, only brings up for review the pleadings, verdict, judgment, and orders upon which it was based. Kelley v. C., M. & St. P. R. Co. 362 53 Wis. 76; Edleman v. Kidd, 65 Wis. 21. Of course such orders are reviewable on appeal from the judgment. The charge of the court is printed. If we were at liberty to consider that as a. part of the record, we might be forced to the conclusion that the jury must have found that the tax deed mentioned was acquired by the defendant while acting as the agent of the plaintiff to pay the taxes on this same land. If that were so, then such acquisition of the deed would have been, in legal effect, a payment of such taxes and an extinguishment of such tax deed. In that view of the case the act quoted would have no application here. But the charge of the court is no part of the record, and we are not at liberty to consider it. Kirch v. Davies, 55 Wis. 299. The pleadings are, of course, a part of the record. The complaint is simply in the statutory form, and makes no reference to such tax deed, nor any tax deed. The answer contains nothing but a general denial. The verdict is a part of the record, but that determines nothing but the simple issue of title and right to possession, made by the complaint and answer. There are no findings or finding by the court, except in so far as the recitals in the judgment and the orders upon which it is based are to be regarded as findings. The judgment recites all that is contained in such orders respectively, and more, as apr pears from the above statement of facts. It is sufficient to say that, assuming all such recitals to be findings by the court, still there is no finding by the court or jury that the plaintiff was entitled to recover “ by reason of a defect or insufficiency of any tax deed.” Under the act such finding was absolutely essential, even where it appeared from the pleadings that the defendant claimed title under a tax deed, in order to make such payment of taxes by the plaintiff a condition precedent to judgment in his favor. But, as observed, no such claim was put in issue or referred to by the pleadings,' and such recitals are outside of the 363 issues and the verdict. While presumptions are frequently-entertained in support of judgments, yet they are not to be indulged to the extravagant extent of assuming the existence of facts never put in issue, nor tried, nor determined. Blossom v. Ferguson, 13 Wis. 75; Farrell v. Drees, 41 Wis. 186; Hogan v. C., M. & St. P. R. Co. 59 Wis. 148. This court must deal with the issues actually tried, submitted, and determined; and not such as might have been but were not. Murphy v. Martin, 58 Wis. 280. By the Gourt. — ’The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment upon the verdict in favor of the plaintiff and against the defendant.