Finn v. Wisconsin River Land Co.

Lyon, J. The learned counsel for the defendant frankly admits (and such is undoubtedly the fact) that the finding of the circuit court on the subject of possession is supported by the evidence. He maintains, however, with much earnestness and ability, that notwithstanding the existence of the facts so found the land in question was vacant and unoccupied during the entire three years next after the recording of the tax deeds of 1882 and 1884, respectively; and hence that the three years limitation of sec. 1188, R. S., as amended by sec. 2, ch. 399, Laws of 1880, had fully run in favor of those deeds before this action was commenced. If this proposition is true, the defendant is the absolute owner of the land, and the plaintiffs cannot maintain this action. The accuracy of the findings to the effect that the tax deed of 1885 is irregular and void, and of the sum the plaintiffs were required to pajr into court for the defendant on account thereof, pursuant to sec. 4, ch. 309, Laws of 1880, are not controverted by counsel for defendant. It is obvious, therefore, that the controlling question which this appeal presents for determination is, Was the land described in the complaint vacant and unoccupied from May 31, 1882, or from May 21, 1884 (the dates of recording the tax deeds), for three years next ensuing either of these dates? If it was so vacant and unoccupied during either of such terms of three years, the limitation of the amended sec. 1188, R. S., has run in favor of at least one of these tax deeds, and the action cannot be maintained, because in such case the tax deed, instead of being a mere cloud upon the plaintiffs’ title to the land, is conclusive evidence that [551] the defendant is the absolute owner thereof. On the other hand, if during- both of those terms of three years the plaintiffs were in the actual adverse possession of such land, or, the same being vacant when either of the tax deeds was recorded, if the plaintiffs, during the next three years, took actual adverse possession, thus disseizing the defendant of his constructive possession under his tax deed, then the limitation of sec. 1187, E. S., as amended, has run against the deed in favor of the plaintiffs. If such limitation has run against both tax deeds,, the defendant has no estate or interest in the land by virtue of them, and the deeds are clouds upon plaintiffs’ title from which they are entitled to be relieved in this action. In such case the judgment herein granting such relief should not be disturbed. Counsel for defendant seems to maintain that under sec. 1190, E. S., to prevent the running of the three years limitation in favor of the tax deeds, the plaintiffs must show; an actual possession by them, during such term, of the character specified in sec. 4212, R. S. Sec. 1190 provides, in substance, that the possession of land, and the extent thereof, within the meaning of secs. 1187 and 1188, “shall be governed by the rules prescribed for determining an adverse possession by a person claiming title founded upon a written instrument.” Those rules are prescribed in sec. 4212. The position is not well taken. It was held in Wilson v. Henry, 40 Wis. 594, that the statute contained in the Revision of 1858, corresponding with sec. 4212 of the present Eevision, was designed “ to supply certain conditions of actual adverse possession, not to exclude others.” In the opinion in that case by Ryan, C. J., the question is fully discussed, and many cases determined by this and other courts are cited in support of the rule there established by this court. The present case furnishes an apt illustration of the application of the rule. If an adverse possession can only be established by proof of the acts specified in sec. [552] 4212, it could not be held that the defendant, who claims under tax deeds, had adverse possession of the land, even though the same was vacant, for the statute does not extend to such a case; yet his defense in this action rests entirely upon the proposition that he had the constructive adverse possession of the land. As applied to this case, the true rule undoubtedly is that, if the plaintiffs actually and exclusively occupied the land in question in hostility to the defendant’s title, and subjected the same to their will and dominion by actual and appropriate use thereof, according to its locality, quality, and character, the evidences of such occupancy being tangible and visible to a person going upon and examining the land, such occupancy and use constituted adverse possession by the plaintiffs. On this subject, generally, we refer to 1 Am. & Eng. Encyc. Law, tits. “Adverse Possession,” p. 225, and “ Actual,” p. 184g, and numerous cases cited in. the notes. This work, now in process of publication, is ably edited, and bids fair to become a most valuable addition to our legal literature. We are of the opinion that the findings of the court upon the subject of possession make a case, under the above rule, of adverse possession of the land by the plaintiffs from the time the tax deeds were recorded to the commencement of the action; that is to say, that the land ivas never vacant and unoccupied after the recording of those deeds, and hence that the three years limitation ran against and barred any claim of title under such deeds. If we assume the land vacant when either tax deed was recorded, in which case the limitation of sec. 1188 commenced at that time to run in favor of the grantee therein, then it is clear that during the ensuing three years such grantee was repeatedly disseized by the plaintiffs; which disseizin stopped the running of the limitation in favor of such tax-title grantee, and the plaintiffs’ continual occupation thereafter-turned the limitation in their favor. Sydnor v. [553] Palmer, 29 Wis. 226; Haag v. Delorme, 30 Wis. 591; Lewis v. Disher, 32 Wis. 504. The subject is fully discussed in those cases, particularly in the latter, and the rules here indicated established. Further discussion is unnecessary. The point was made in argument that the possession of the plaintiffs was taken in bad faith, and for the purpose of defeating the tax title. We do not find in the record any such evidences of bad faith as will prevent a court of equity from granting the relief prayed. By the Court.— The judgment of the circuit court is affirmed.