Brunette v. Norber

Cassoday, C. J. There is no claim that the defendant was in possession of the premises prior to the time he obtained his deed dated July 1, 1905, mentioned in his answer. There was some question as to whether the plaintiff acquired the tax title in good faith or in collusion with her husband and' for his benefit. It is undisputed, however, that the record title under the tax deed was taken in the name of the plaintiff and for her benefit, and that she paid for the same from her own separate property. It is conceded that such tax deed was void upon its face. True, there is evidence tending to prove that work was performed on the land for the plaintiff’s husband, but it also appears, and is undisputed, that the-plaintiff lived thereon and paid for such services. Under the repeated rulings of this court, the right of a married woman to acquire title in the manner indicated cannot be seriously doubted. Dayton v. Walsh, 47 Wis. 113, 2 N. W. 65; Kendall v. Beaudry, 107 Wis. 180, 184, 83 N. W. 314; Kriz v. Peege, 119 Wis. 105, 109, 95 N. W. 108, and cases there cited. As indicated in the statement of facts, the jury found that the plaintiff was in possession of the premises when the defendant entered upon the same and cut the grass and trees as mentioned. Such finding is amply supported by the evidence. The value of such grass and trees appears from the [636] testimony of tbe defendant and is undisputed. It is established by the verdict of the jury and the undisputed evidence that the plaintiff was in the actual possession of the premises from the time the tax deed was recorded down to and including the time when the alleged trespass was committed. During that time neither the defendant nor any person under whom he claimed title paid any taxes on the premises. On the contrary the plaintiff paid all taxes thereon after the execution of such tax deed. In view of such undisputed evidence and such verdict, the question recurs whether the plaintiff has established her title to the premises by virtue of- such actual possession under such void tax deed during the time mentioned. The general purpose of the statutes in respect to taxes is to secure the early payment of the same and to bar all controversies in regard to such taxes within certain limited periods. Not only are the grantee in a tax deed and those claiming under him limited to certain periods within which to enforce their claim against the land, but the former owner and those claiming under him are also limited to' certain periods within which to avoid such tax deed. Secs. 1187-1189^ Stats. 1898. Among the limitations upon the former owner is an amendment proposed by the revisers of the Statutes of 1898 and adopted by the legislature, which declares: “No action shall be brought by the original owner for tire recovery of lands purporting to be conveyed for the nonpayment of taxes by a deed void on its face after the expiration of five years from the date of the recording of the tax deed, in cases where the grantee in the tax deed shall have taken actual' possession of such land within two years after such, recording and shall have actually and continuously maintained such possession to the end of such period of five years.” Sec. 1189b, Stats. 1898. It is said in a note by the revisers that such amendment was “intended to apply such limitation even if the tax sale was without jurisdiction, since the limitation depends wholly on color of title and actual possession of part or all of the land in question.” See cases there cited. The case presented [637] comes squarely witbin tbe language of tbe statute quoted. True, tbe plaintiff is not named as grantee in tbe tax deed, but is named as grantee in tbe warranty deed given to ber by tbe person to whom sucb tax deed was issued. Our statute declares : “Tbe word ‘grantor’ may be construed as including every person from or by whom any freehold estate or interest passes in or by any deed; and tbe word ‘grantee’ as including every person to whom any sucb estate or interest passes in like manner.” Subd. 4, sec. 4971, Stats. 1898. See. 1189b went into effect September 1, 1898, only a little over two years after tbe recording of tbe tax deed in question. It clearly applies to this case, and establishes tbe plaintiff’s title under tbe tax deed and bars tbe defendant as tbe original owner. We find no reversible error in tbe record. By the Court. — Tbe judgment of tbe circuit court is affirmed.