Farnham v. Sherry

LyoN, J. The learned counsel for the plaintiff with much ingenuity of argument maintain that the judgment of the circuit court herein is erroneous because (1) on general principles of law the absolute title of the land in controversy was in the United States in 1862, when the tax was levied thereon which is the basis of the tax deed of 1866, and hence the land was not then taxable; and (2) if plaintiff then owned an interest in the land otherwise taxable, the same — 572 — was exempt from taxation by cb. 105, Laws of 1861. An additional objection to a full recovery by defendants is founded upon an alleged want of title in them of the whole 160 acres under mesne conveyances from Hanson. These propositions will be considered in their order. I. Laying out of view for the present the effect of ch. 105, Laws of 1861, the first question to be determined is, Had Watkins a taxable interest in the. land in 1862? In considering this question it must be borne in mind that Watkins, the plaintiff’s grantor, made an effectual entry or location of the land in 1857, paid therefor, and received the usual certificates thereof from the proper local land officers of the government. That this vested in Watkins the entire equitable title to the land and beneficial interest therein, the United States holding only the naked legal title in trust for him, is settled in this state beyond controversy. Of course Watkins’ interest was taxable. What happened before 1862 that divested Watkins’ title, and thus relieved the land from liability to taxation ? Nothing whatever except that in 1857 the commissioner of pensions without authority notified the commissioner of the general land office that the validity of the land warrant No. 50,308, located on the land in controversy, was impeached, and requested the latter to withhold the patent therefor. The commissioner of the land office complied with such request, and no further action was taken in the matter until June 15, 1863. It requires no argument to show that these acts did not and could not affect the title of Watkins to the land. At most they merely delayed him in obtaining the legal title which the United States then held in trust for him, and which in its own good time it conveyed to him. The case of Wis. Cent. R. Co. v. Price Co. 64 Wis. 579, in principle is identical with the present case. The railroad company was entitled to patents from the United States — 573 — for certain specific lands. The government land officers refused to issue such patents, claiming that the railroad company was not entitled thereto, yet the equitable title was held to be in the railroad company, and the lands were held taxable although patents were refused. See, also, the recent cases of Wis. Cent. R. Co. v. Wis. River Land Co., ante, p. 94; Spiess v. Neuberg, ante, p. 279. The question under consideration was fully discussed in those cases by Mr. Justice Cassoday, and numerous authorities cited bearing upon it. The opinions and judgments therein are conclusive of the question, and relieve us from the necessity of further discussion thereof. It is only necessary to add a few observations upon the case of Calder v. Keegan, 30 Wis. 127, upon which counsel for plaintiff seem to rely. That was a case of suspended entry under a spurious land warrant. After the suspension, the person malting the entry purchased the land and paid for it in cash, as Watkins had the privilege of doing in the present case. Such purchase was held to be a new entry, the purchaser taking no title whatever under the first entry because the warrant was spurious. A tax levied intermediate the two entries was held void. Clearly the case is not in point here. We hold that, from the location of the land by Watkins in 1857 down to the sale thereof in 1863 for nonpayment of taxes, the entire equitable title to, and beneficial interest in, the land in controversy was in Watkins, by virtue of his entry, location, and purchase thereof, and hence that the same was taxable in 1862 unless exempted from taxation by the act of 1861. II. We are now to determine whether ch. 105, Laws of 1861, exempted the land from taxation in 1862. It is provided in sec. 1 of the act that in all cases where entries of land, made at any of the United States land offices within this state, have been suspended by authority of the secretary of the interior, the commissioner of the general land — 574 — office, or the department of the interior, except in certain cases not material here, such land shall not be subject to taxation until such suspension is removed and the title confirmed to the original applicant. By the terms of the act such exemption is limited to two years from the date of the passage of the act, which was March 25, 1801. Sec. 2 provides that in all cases where lands situated as stated in sec. 1 have been sold for taxes while the entry thereof was suspended, all tax certificates of sale and tax deeds issued in pursuance of such sale for taxes are null and void. Sec. 3 is as follows: “ All persons claiming relief under the provisions of this act, where the entries of land were suspended at the date of the passage hereof, shall, within one year from the passage of this act, cause to be filed in the office of the clerk of the board of supervisors of the county in which such suspended lands are located a certificate of such suspension from the general land office or from the local land office where such .entries were attempted to be made; and all persons claiming such relief on account of the suspension of entries hereafter made shall file a like notice with the said clerk within one year from the time of such suspension.” It is very doubtful, to say the least, whether the entry or location of the land in controversy was ever suspended by any authority specified in sec. 1. But, assuming for the purposes of the case that such entry or location was so suspended, the suspension occurred November 21, 1857, when the commissioner of pensions requested the commissioner of the land office to withhold the patent, which request was complied with. This occurred before the passage of the act of 1861. Sec. 3 of the act required Watkins to file the certificate specified therein with the clerk of the board of supervisors within one year from the passage of the act, that is to say, by March 25,1862. There is no proof in the case that this was done. We think the provisions of sec. 3 — 575 — are mandatory, and that it was essential for "Watkins to file such certificate within the prescribed time in order to avail himself of the provisions of secs. 1 and 2. Doubtless the legislature foresaw that, without some such provision as that contained in sec. 3, the taxing officers would or might be entirely in the dark as to what suspensions had been made, without adequate means of ascertaining the fact. The result would naturally be that lands exempt from taxation under the act would continue to be assessed and taxed and sold for nonpayment of taxes. Parties would invest their money on the faith of the validity of the taxes, perhaps make valuable improvements upon the land believing they had a good title thereto, when the original owner at his own convenience would bring forth from the archives of the land office at Washington evidence of a suspension of the entry, and thus defeat the title of the purchaser. In view of these and other considerations, it must be held that the filing of the certificate pursuant to sec. 3 is a condition precedent to the right of the original owner to claim the benefit of the exemption of sec. 1. Hence we conclude that the act of 1861 does not aid the claim of the plaintiff in this action. III. It is claimed on behalf of the plaintiff that the defendants established on the trial a title under Hanson to but an undivided one-half of the land in controversy, and that it was error to give them judgment for the possession of the whole. It is elementary that the plaintiff in ejectment recovers- (if at all) upon the strength of his own title, and not upon the weakness of that of his adversary. The plaintiff failed to establish any title to the land, and was necessarily defeated in the action no matter who was the owner. The land was entirely vacant and unimproved. Yet, although it was not in the actual possession of any one, the statute required the plaintiff to allege in her complaint that the defendants unlawfully withheld the posses — 576 — sion thereof from her. R. S. sec. 3077. It is this constructive possession, and this only, that the judgment awards to the defendants. Whether the judgment in this respect is regular or irregular is quite immaterial, for it can result in no harm to the plaintiff. Upon the whole case we conclude that the judgment of the circuit court is correct and should be affirmed. By the Court.— Judgment affirmed.