Sloan v. Rose

WiNslow, J. There seems to be no good reason why this judgment should not be affirmed. The plaintiff claims title under a tax deed of lands which are now, and since 1860 have been, vacant and unoccupied. The deed was fair on its face, and was executed to Douglas county, August 6, 1877, and duly recorded on the following day. Under sec. [527] 1188, R. S. ,1878, as amended by sec. 2, ch. 309, Laws of 1880, the original owner was barred at the expiration of three years after the recording of the deed, and the deed could not be impeached by showing defects or irregularities-in its issuance. Hotson v. Wetherby, 88 Wis. 324. The county executed a quitclaim deed of the premises to the plaintiff’s grantor March 4, 1878, under a resolution of the county board passed at special meeting held January 28,1878. This resolution reads as follows: “ Resolved, that the clerk be, and he is hereby, authorized to sell and convey any or all property now held by the county under deeds executed in 1877, at the amount of taxes and costs charged against the-respective lots, pieces, or parcels, payable in county orders; provided that such sale and conveyance be made to the former owner or owners only, until the 1st day of March, 1878, and thereafter to any person or persons desiring- to purchase said property, or any part thereof.’! “ Unanimously adopted.” It is argued that the resolution is void, because the county had no power to sell for anything but cash, nor to limit the class of people to whom sale should be made for a given time. These questions cannot be raised in this action. The defendants are in no situation here to call the county or its officials to account for illegal acts. The plaintiff’s grantor paid the county the price fixed for the land, being the' amount of taxes and costs due thereon, and received a duly executed deed; and this transaction has never been challenged in any action or proceeding brought for that purpose in any court. The county board had power to sell the county lands; and, if they have sold them irregularly or for a consideration not contemplated by the statute, the transaction cannot be said to be ultra vires, in the sense that it is void so that it may be attacked when it arises collaterally between third persons, as in the present case. There are actions provided, to which the county and its officials [528] must be parties, tvhere such questions may properly be raised and litigated, but this is not one of those actions. So this objection falls to the ground. The only other question raised in the appellants’ brief which seems of sufficient importance to discuss is based upon an objection to evidence raised upon the trial. The defendants, after answering claiming title under Samuel Rose, attempted to plead the same title as a counterclaim, and demanded judgment quieting their title. No reply was served to this counterclaim, and the appellants claimed that they were entitled to judgment upon their counterclaim, because of the failure to reply. R. S. 1878, sec. 2662. This claim is entirely unfounded. The so-called counterclaim consisted simply of allegations setting up the title which was set forth in the complaint as void, and which constituted the cloud which the action was brought to remove. There was no propriety in attempting to plead it as a counterclaim. The complaint set forth the plaintiff’s title, and the spurious title ■of the defendants under Rose, and the answer attacked the plaintiff’s title and alleged facts tending to show the validity of the Rose title. The issue was then complete; the ■counterclaim added nothing to the controversy. The statute says (sec. 3186, R. S. 1878, as amended by ch. 88, Laws of '1893) that the defendant, if he do not disclaim, may answer any matter “in denial of the plaintiff’s claim, title or possession, or which, if proved, will establish his own, and judgment shall be rendered according to the rights of the parties.” The counterclaim was therefore superfluous and unnecessary. The whole matter was before the court in the allegations of the complaint and answer, without the counterclaim, and the plaintiff might well treat it as surplusage. By the Court.— J udgment affirmed. Maeshall, L, took no part.