Mitchell Iron & Land Co. v. Flambeau Land Co.

Dodge, J. Appellants’ first criticism of the complaint is that the general allegations that plaintiff is the owner in fee simple of the lands described, and that defendants make •claims thereto which are clouds upon that title, constitute mere conclusions of law, and are not allegations of any facts, within the requirements of sec. 2646, Stats. 1898. That suggestion has support from some earlier cases. Wals v. Grosvenor, 31 Wis. 681; Page v. Kennan, 38 Wis. 320. Its efficiency is, however, wholly overcome by the statutory amendment now embodied in sec. 3186, Stats. 1898, which declares: “It shall be sufficient to aver in the complaint in such action the nature and extent of the plaintiff’s estate in such land, describing it as accurately as may be, that he is in possession thereof or that said land is vacant and unoccupied, and that the defendant makes some claim thereto.” The allegations criticised, if they stood alone, would satisfy the calls of this statute, and be sufficient. The more serious difficulty is that plaintiff, while doubtless alleging all that the statute requires, has not been content to stop there, but has proceeded to allege other facts, which, it is claimed, show affirmatively that it has no cause of action. If this be so, of course, the demurrer should have been sustained. It would be absurd to put a defendant to the trouble of answering, and the court to the burden of hearing, a case, when, upon the showing of the complaint, no judgment save dismissal thereof can be rendered. Such possibility is repudi [548] ated by all tlie authorities. Teetshorn v. Hull, 30 Wis. 162; Kellam v. Toms, 38 Wis. 592, 602; Lawrence v. Janesville, 46 Wis. 364, 1 N. W. 338, 50 N. W. 1102; Hoth v. Peters, 55 Wis. 405, 412, 13 N. W. 219; State v. Egerer, 55 Wis. 529, 13 N. W. 461; Crumbly v. Bardon, 70 Wis. 385, 39 N. W. 19; State v. Citizens' Ins. Co. 71 Wis. 411, 37 N. W. 348. While a complaint need not negative defenses, it will be demurrable if it assert facts showing a complete and valid one to exist. The allegations relied on to thus show an affirmative- defense are that defendants have received from the county clerk certain tax deeds and certain tax certificates. Are such allegations so effective? If such deeds are valid, they certainly do cut off all plaintiff’s government title, and confer title on defendants, which plaintiff cannot have barred or released. Sec. 1176, Stats. 1898, provides that a tax deed executed and acknowledged as required by law shall vest in the grantee absolute estate in fee simple; also that it shall be presumptive evidence of the regularity of all the prior-proceedings. See, also, Gates v. Parmly, 93 Wis. 294, 312, 66 N. W. 253, 67 N. W. 739. The complaint makes no assertion whatever as to the terms or validity of the conveyances received by defendants, except that they were “tax deeds.” To be such, they must have been more than blank paper. The county clerk has no authority to deliver them until they have been executed in the name of the state and of his county, under his hand and the seal of the county, and acknowledged by him. How, then, can we escape the conclusion that they are not tax deeds, until so executed, containing the declarations and recitals required by law? It seems to us that we cannot, but that we must read this complaint as asserting that the instruments under which the defendants claim were so executed. As a result, of course, they establish prima facie the regularity of all prior proceedings, and convey absolute title. If they are claimed by plaintiff [549] .to be in any way invalid or ineffectual, nothing was easier •than for him to so declare, bnt he has industriously refrained from so doing. The assertion that they are clouds upon his government title is not inconsistent with their entire validity. Being valid, they are only so much more effective as clouds .that they obscure and blot out entirely the former title. We come to the conclusion, therefore, that the complaint shows upon its face that plaintiff is not entitled to the relief demanded against thó defendants. By tJi3 Court. — Order appealed from is reversed, and cause remanded with directions to sustain the demurrer.