Wisconsin River Land Co. v. Paine Lumber Co.

Cassoday, C. J. 1. Eour grounds of demurrer are stated. Only two of them are discussed by counsel. One of tbe grounds so discussed is that tbe complaint does not state facts sufficient to- constitute a cause of action. Tbe statute prescribes what must be alleged in a complaint in an action of [396] ejectment. It must “set forth that the plaintiff has an estate or interest in the premises claimed/’ and “particularly state the nature and extent of such estate or interest, whether in fee/’ etc., “and that the defendant unlawfully withholds the possession thereof, from him, to his damage such sum as he claims.” Sec. 3077, Stats. 1898. This is, undoubtedly, an action in ejectment, and the complaint alleges all the facts thus required by the statutes. Counsel for the defendant concedes that “the plaintiff in its complaint has conclusively shown that it is the owner in fee simple of these lands by virtue of valid tax deeds duly issued to plaintiff’s grantors, that the same were fair on their face and were duly recorded,” .and “that ever since the execution and delivery, of said tax deeds the lands, and all of them, have been and still are wild lands, and vacant and unoccupied,” and that “by a long line of decisions the plaintiff has therefore established that it is the legal owner of these*’ lands and is in the constructive possession of the same,”—citing Sprecher v. Wakeley, 11 Wis. 432; Hill v. Kricke, 11 Wis. 442; Knox v. Cleveland, 13 Wis. 245. The contention seems to be that, although the complaint alleges all the facts thus required by the statute and 'Sufficient to entitle the plaintiff to recover in ejectment, yet that its sufficiency is destroyed by reason of the additional allegations that such lands were “vacant and unoccupied” and “that the defendant claims title in fee simple to said lands.” Counsel virtually concede that with those allegations stricken out the complaint would have satisfied all the calls of the statute. Assuming this to be so, still it was held by this court many.years ago, on demurrer, that irrelevant or redundant matter in a complaint in ejectment did not destroy nor vitiate the facts well pleaded, nor change the nature and character of the action. Riemer v. Johnke, 37 Wis. 258, 261. Besides, the statute as amended also declares that “if .the premises for which the action is brought are actually occupied by any person, such actual occupant shall be made de [397] fendant in complaint; if they are not so occupied, tbe action-must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto or some interest therein, at the commencement of the action, or against the person in whom the title appears of record in the office of the register of deeds in and for the county in which said premises are located, at the commencement of the action.” Sec. 3075, Stats. 1898; sec. 1, ch. 152, Laws of 1901; Stephenson v. Doolittle, 123 Wis. 36, 100 N. W. 1041; Cypreanson v. Berge, 112 Wis. 260, 263, 264, 87 N. W. 1081. We must hold that the complaint states a good cause of action in ejectment against the defendant. 2. The only other ground of demurrer discussed by counsel is that the cause of action alleged in the complaint is barred by the three years’ statutes of limitation. Ch. 309, Laws of 1880; secs. 1187, 1188, S. & B. Ann. Stats. 1889 and Stats. 1898. The same statutes of limitation are alleged in the twelfth paragraph of the complaint as having run in favor of the plaintiff and its grantors for more than three years prior to the commencement of this action and since the recording of such tax deeds and each of them. The lands being vacant and unoccupied during the times alleged, there can be no question under the decisions of this court that the plaintiff and its grantors are entitled to the protection of such statutes of limitation. Knox v. Cleveland, 13 Wis. 245; Dupen v. Wetherby, 79 Wis. 203, 48 N. W. 378; Gunnison v. Hoehne, 18 Wis. 268; Lawrence v. Kenney, 32 Wis. 281. In this last case it was held: “The grantee in a tax deed has the constructive possession of the land if actually unoccupied; and in such case, after the expiration of the time limited for an action by the former owner to test the validity of the tax deed, . . . the title and right of possession under the tax deed having become absolute, the grantee therein may maintain ejectment against any person thereafter taking possession adversely to such deed, and the bar of the statute does not apply to him.” [398] In another case it was held: “Under tbe statutes of 1849, the formal execution and record of a tax deed of unoccupied premises drew after it the' possession, and made it incumbent on the previous owner, if he desired to contest its validity, to commence his action, or take actual adverse possession, within the period of limitation prescribed; otherwise, his right was gone.” Dean v. Earley, 15 Wis. 100. In another case it was held: “Where the bar of the statute of limitation is complete in favor of the grantee in a tax deed, he has an absolute title to the land, which cannot be defeated by a statute subsequently enacted.” Lindsay v. Fay, 28 Wis. 177. See, also, Gates v. Parmly, 93 Wis. 294, 313, 66 N. W. 253, 67 N. W. 739. Other cases might be cited, but it is unnecessary. We must hold that the cause of action alleged in the complaint is not barred by the statutes of limitation. By the Court. — The order of the circuit court is affirmed.