Preston v. Thayer

Cassoday, C. J. Tbe statute provides tbat a tax “deed duly witnessed and acknowledged shall be presumptive evidence of tbe regularity of all tbe proceedings, from tbe valuation of the land by tbe assessor up to and including the execution of tbe deed, and may be recorded with tbe like effect as other conveyances of land.” Sec. 1176, Stats. 1898; Mitchell I. & L. Co. v. Flambeau L. Co. 120 Wis. 545, 548, 98 N. W. [127] 530. Nevertheless counsel for the plaintiff contend that the court improperly admitted such tax deeds in evidence for the reason that the answer alleged, in reference to each of said tax deeds, that the lands therein described were subject to taxation and duly assessed for taxation and that the taxes were duly levied thereon, setting out in detail the consécu-tive acts required to be performed by the taxing officers from the valuation of the land up to and including the issuiug of the tax certificates on which the tax deeds were based, but that the defendants failed to prove the facts so alleged and hence that the tax deeds were inadmissible in evidence. There is nothing in those allegations which tends to destroy or impair the “presumptive evidence” of such tax deeds by virtue of the statute quoted. In the case relied upon by counsel the plaintiff introduced a sheriff’s deed on execution sale, which under the statute was prima facie evidence of title in the person named as grantee therein. Thereupon he introduced in evidence the judgment and the docket thereof, the execution issued thereon and its delivery to the sheriff, and its return to the proper clerk about three months afterwards; but no return of the sheriff was indorsed thereon, nor anything to indicate his doings upon or in respect to such execution, and there was a failure to show any publication of notice of sale, and so it was held that the recitals in the sheriff’s deed were insufficient to supply such defects. Claflin v. Robinhorst, 40 Wis. 482. The case differs materially from the one at bar. As stated by a standard text-writer, “a presumption cannot contradict facts or overcome facts proved.” Lawson, Presumptive Evidence, 659, rule 119. Certainly a party having a presumption in his favor may himself prove that such presumption is without foundation. The more important question in this case is whether the plaintiff, as such former owner, is barred from maintaining •this action because.it was not “brought within three years next after the recording of such deeds,” as prescribed in sec. 1188, Stats. 1898. It is conceded, in effect, that if the three128 year limitation bad not ran and the seven tax deeds are open to attack, tben tbat tbey must be declared void. Tbe case, therefore, turns upon whether the three-year statute of limitation had or had not run when this action was commenced. The plaintiff contends that the running of that statute was stopped and held in abeyance for more than four years by the pendency of the actions brought by Mrs. Thayer against this plaintiff and his wife and others, under see. 1197, Stats. 1898, to bar them from all right, title, interest, and claim in said1 lands, or any part thereof, and in which actions the plaintiff and his wife, Mr. and Mrs. Preston, interposed an answer and defense, as mentioned in the foregoing statement. In support of such contention counsel for the plaintiff rely upon the section of the statute which declares that: “The periods of limitation, unless otherwise specially prescribed by law, must be computed from the time of the accruing of the right to relief by action, special proceedings, defense or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party as a plaintiff or defendant in the particular action or special proceeding, except that as to a defense, setoff or counterclaim the time of the commencement of the plaintiff's action shall he deemed the time when the claim for relief as to such defense, setoff or counterclaim is interposedSec. 4249, Stats. 1898. And also the section which declares that: "When a defendant in an■ action has interposed cm answer ccs a defense, setoff or counterclaim upon which he would he entitled to rely in such action the remedy upon which, at the time of the commencement of such action, was not barred hy law, and such complaint is dismissed or the 'action is discontinued the .time which intervened between the commencement cund the termination of such action shall not he deemed a part of the time limited for the commencement of an action hy the defendant to recover for the cause of action so interposed as a defense, setoff or counterclaim.” Sec. 4250, Stats. 1898. [129] Counsel for the defendants contend tbat neither of these sections is applicable. But, as we read these sections, the case presented comes squarely within the provisions of both sections. Mrs. Thayer commenced her seven actions under sec. 1197, Stats. 1898, to bar the original owners, October 5, 1899. The only service on Preston and wife and others, nonresident' owners, was by publication, which was completed January 2, 1900. Judgment by default was taken. Preston and wife interposed a defense by verified answer, and the court set aside each of the judgments as to them, and they were allowed to defend under the provision of the statute giving such right. Sec. 2833, Stats. 1898. September 21, 1903, Mrs. Thayer discontinued her seven actions, and judgments were entered accordingly. Two days afterwards Mr. Preston commenced this action, to accomplish what he sought to accomplish by the defense in each of the other actions, but in which he was defeated by the discontinuance of those actions. The exception contained in sec. 4249 is to the effect “that as-to a defense . . . the time of the commencement of the-plaintiff’s action shall be deemed the time when the claim for relief as to such defense ... is interposed.” In other words,. Preston and wife must be deemed to have interposed their-defense in each of the seven actions at the time they were respectively commenced, October 5, 1899. At-that time the remedy which Mr. and Mrs. Preston sought to obtain in such seven actions, and which Mr. Preston here seeks to obtain, was not barred by the statute of limitation. Sec. 1188. And so the section last quoted declares, in effect, that “when a defendant in an action has interposed an answer as a defense, . . . upon which he would be entitled to rely,” as Mr. and Mrs. Preston did in each of the seven actions mentioned, and the complaint in such action “is dismissed or the action is discontinued the time which intervened between the commencement and the termination of such action shall not be deemed a part of the time limited for the commencement of an action [130] by the defendant to recover for the cause of action so interposed as a defense.” Sec. 4250. That is to say, the time from October 5, 1899, when Mrs. Thayer commenced her seven actions, to September 21, 1903, when she discontinued those actions, is not to be deemed a part of the time limited for Mr. Preston to commence this action to recover for the cause of action so interposed as a defense in each of the seven actions. We must hold that the three-year statute of limitation (sec. 1188) had not run against the plaintiff, as such original owner, when this action was commenced, and hence that the evidence offered by the plaintiff showing the invalidity of each of several tax deeds was admissible and shows that each of said tax deeds is void. Under the stipulation mentioned in the foregoing statement it is unnecessary to consider any other question. By the Oourt. — The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiff and against the defendants as indicated in this opinion.