Dunbar v. Lindsay

WiNslow, J. The circuit judge rightly held the defendant’s tax deed void on its face. By one recital the tax deed declares that the lands were sold to the defendant, and by another recital that the certificates were assigned to the defendant. Thus it appears that it cannot be ascertained from the face of the deed to whom the lands were sold; in other words, it fails to state the name of the purchaser at the tax sale. [242] This defect lias always been hefd to render tbe deed void. North v. Wendell, 22 Wis. 431; Eaton v. Lyman, 33 Wis. 34; Hunt v. Stinson, 101 Wis. 556, 77 N. W. 901. The appellant claims that if the tax deed be void the action was barred by sec. 1189a, Stats. 1898, as amended by sec. 21, ch. 351, Laws of 1899. This claim, however, cannot prevail, because it appears that the respondent (the original owner) on the 27th day of November, 1899, duly redeemed the lands in question from the taxes for the years 1896 and 1897; hence, under the proviso in the seetion cited, it does not apply. . Another claim was made by appellant for the first time in this court, namely, that if the tax deed be void on its face it did not confer constructive possession upon the tax title claimant; that -the evidence showed that the lands were at all times vacant and unoccupied, and hence that ejectment could not be maintained against the tax title claimant, because he had never been either in actual or constructive possession of the premises. In support of this contention Cutler v. Hurlbut, 29 Wis. 152, is relied upon. There are at least two sufficient answers to this contention: First. It is alleged in the complaint that the defendant is in possession of the premises, and the answer states that the defendant has been in undisputed and continuous possession since the recording of his tax deed, and has made improvements thereon. Thus the fact of defendant’s actual possession is established by the pleadings, which have never been amended. The evidence showing that the lands were vacant was all given under the plaintiff’s objection, and was clearly inadmissible to controvert a fact which stood admitted by the pleadings. Second. The case of Cutler v. Hurlbut does not hold that ejectment may not be maintained by the original owner against a claimant under a void tax deed where the lands are vacant, but rather the reverse. That case was an action of ejectment by the original owner against a tax title claimant whose deed [243] omitted tbe words “as tbe fact is” in tbe various recitals. Tbe trial court directed a verdict for tbe defendant, and refused to instruct as requested by tbe plaintiff, to tbe effect that if neither tbe grantee nor bis assigns entered into actual possession of tbe premises witbin three years after tbe tax deed was recorded, and bad not been in actual possession for ten years before tbe commencement of tbe action, tbe verdict must be for tbe plaintiff. Upon appeal to this court there was a division of opinion as -to tbe rights of tbe parties under tbe deed. All of tbe justices were of opinion that if tbe tax deed was void tbe instruction refused should have been given. Justice LyoN was of opinion that tbe tax deed was valid, and hence tbe verdict was properly directed for tbe defendant. Chief Justice DixoN and Justice Cole were of opinion that tbe tax deed was void, but tbe chief justice thought tbe judgment should be affirmed, because the bill of exceptions did not purport to contain all of tbe evidence, and hence no affirmative error was shown in tbe order directing a verdict. Justice Cole dissented from tbe judgment, being evidently of tbe opinion that tbe case should be reversed for failure to give tbe instruction mentioned above. Thus it is evident that upon tbe point now raised tbe court in effect held that ejectment could be maintained against a tax title claimant under a void tax deed who bad not bad actual possession. We see no reason to change tbe rule there impliedly, if not expressly, adopted. By the Court. — Judgment affirmed.