Dupen v. Wetherby

Taylor, J. The respondents, the plaintiffs in the court .below, were at the time of the commencement of this ac204 fcion in the actual possession of the real estate described in the complaint, claiming to own the same in fee; and this action was brought against the defendant, who also claimed title to the same. The object of the action on the part of the plaintiffs was to quiet their title as against the claim of the defendant. The plaintiffs in their complaint set out their title at length,«and claim to own the land by virtue of certain tax deeds from the state and the county of Douglas to one James S. Ritchie, and as the grantees of said Ritchie, through conveyances from him or from his grantees. The complaint alleges that four tax deeds were issued to said Ritchie: One January 1, 1871, on a tax sale made in 1867; one dated April 9, 1873; one May 14, 1880; and one dated January 24, 1880, on the sale of 1876. These tax deeds were duly recorded in the office of the register of deeds of the said county of Douglas soon after they were executed. The defendant denied the title of the plaintiff, and claimed title in himself. On the trial the plaintiff offered in evidence her tax deed bearing date January 1,1871, on tax sale of 1867, and also a conveyance from Ritchie to one P. H. Perkins, and from said Perkins to plaintiffs; and it was admitted that the plaintiffs took actual possession of the lands in controversy on the 1st of June, 1890, and that previous to that date the said lands were wild and vacant, and never in the actual possession of any person, except the constructive possession given by deeds recorded in the office of the register of deeds of said county. It was also admitted by the defendant on the trial “ that the plaintiffs are the owners of the land described in the complaint, and in the tax deeds mentioned therein, by mesne conveyances, unless such tax deeds are shown to be void on account of irregularities and defects in the proceedings upon which such tax deeds are based, the evidence of which was excluded by the court because [205] barred by tbe statute of limitations; ” and tbe plaintiffs admitted “ that tbe defendant is tbe owner of tbe lands described in tbe complaint, unless bis title bas been defeated and barred by tbe tax deeds under wbicb tbe plaintiffs claim title.” On tbe trial tbe defendant offered evidence to show that tbe tax proceedings upon wbicb the tax sales and deeds were made and issued were irregular and void. All offers of evidence of that bind were objected to by tbe plaintiffs, and excluded by tbe court; tbe court bolding that tbe statute of limitations bad run in favor of tbe title under tbe tax deeds, and that no evidence of irregularities in such tax proceedings would avoid such deeds. It was also admitted or shown upon tbe trial that tbe tax deeds under wbicb the plaintiffs claimed title were regular upon their faces, and properly executed and recorded. Judgment was rendered in favor of tbe plaintiffs, adjudging them tbe owners of tbe said lands as against any claim or title of tbe said defendant, and tbe defendant appeals to this court. Tbe only material question raised in this case is tbe question determined on tbe trial in the court below, viz.: Had tbe statute of limitations run in favor of plaintiff’s tax deeds, or any of them, at tbe time of tbe commencement of this action, so as to bar tbe defendant from attacking tbe regularity of tbe proceedings upon which they were based? It is evident that, unless tbe statute of limitations bad run in favor of .the tax deeds, tbe court erred in excluding tbe evidence offered by tbe defendant on tbe trial. Under tbe decisions of this court there can be no doubt but that tbe three years statute of limitations bad run in favor of tbe two deeds executed and recorded in 18Y1 and in 1873. See Smith v. Sherry, 54 Wis. 114, 122; Milledge v. Coleman, 47 Wis. 184; Gunnison v. Hoehne, 18 Wis. 268; Lawrence v. Kenney, 32 Wis. 281; Oconto Co. v. Jerrard, 46 Wis. 317; Lindsay v. Fay, 28 Wis. 177. And there is [206] no doubt but that tbe statute of limitations contained in sec. 121 Od, E. S. 1878, bad run in favor of the tax deeds issued in 1880. Sherry v. Gilmore, 58 Wis. 324; Haseltine v. Simpson, 58 Wis. 579; McDonald v. Daniels, 58 Wis. 426; Hiles v. La Flesh, 59 Wis. 465; Urquhart v. Westcott, 65 Wis. 135. The cases above cited, and many others which may be found in the notes to secs. 1178,1210d, S. & B. Ann. Stats., clearly show that the statute of limitations had run in favor of the tax deeds of the plaintiffs, and that the title was vested in the plaintiffs, unless the defendant could show either that the lands were not taxable at all, or that the taxes had been paid, or a redemption from the sale had been made before the deeds were issued, or that the officers or municipality under whose authority the taxes purport to be levied had no jurisdiction, under any circumstances, to levy the tax. All mere irregularities in levying the taxes, making the sales, or in executing the tax deeds are cured by the statute of limitations, and there was no offer to show that the taxes were paid or the lands redeemed from the tax sale before the deeds were issued, or that the lands were not taxable at the time the taxes purport to have been levied thereon, and no pretense but that the county and town of Douglas had authority to tax said lands. All the offers made by the defendant to show irregularities in the proceedings were properly rejected by the learned circuit judge. What may be shown to defeat the statute in favor of a tax deed is pointed out in the cases of Oconto Co. v. Jerrard, 46 Wis. 317, 325-327; Knox v. Cleveland, 13 Wis. 245; Wis. Cent. R. Co. v. Lincoln Co. 67 Wis. 478-480; Smith v. Sherry, 54 Wis. 114, 122, 127. As there was no offer to show any actual want of jurisdiction on the part of the taxing officers to levy taxes upon the lands in question, there was no error in rejecting the offered evidence. By the Court.—The judgment of the circuit court is affirmed.