Van Ostrand v. Cole

The following opinion was filed February 19, 1907: Siebeckee, J. Much stress is placed in argument on the claim that plaintiff has failed to show title to the premises. As appears from the foregoing statement of the facts, plaintiff’s claim of title is founded on the five tax deeds issued by Price county to Burrows, all of which were duly of record for more than three years before the commencement of this action. It is contended that plaintiff’s title under these deeds is not protected from attack by defendant for defects and insufficiencies in the tax proceedings. The lands involved were vacant and unoccupied at all the times covered by these transactions. Under these circumstances it follows that the grantee and those holding under him were constructively in possession of the premises from the time of the recording of the tax deeds. The title so acquired became absolute, by force of secs. 1187, 1188, Stats. (1898), at the expiration of three years from the date of the recording of the tax deed fair on its face, and was not thereafter subject to attack for defects in the proceedings. Cezikolski v. Frydrychowicz, 120 Wis. 369, 98 N. W. 211; Wis. River L. Co. v. Paine L. Co. 130 Wis. 393, 110 N. W. 220, and cases therein cited. In the last case the court adopts the individual view on this question of Chief Justice Dixon as expressed in Lawrence v. Kenney, 32 Wis. 281, holding that at the expiration of the prescribed period such a grantee and those [451] bolding under bim acquire an absolute title and right oi possession, and that they “may maintain ejectment against any person thereafter taking possession adversely to such deed.” In view of this and other decision?' on the subject, the right of the plaintiff to maintain this action on the tax deeds issued to Burrows cannot be questioned. Appellant’s counsel cites us to Dickerson v. Colgrove, 100 U. S. 578, in support of the claim that plaintiff’s grantor, Patterson, was estopped from claiming title by reason of Ms failure to pay taxes subsequent to the issuance of the tax deeds forming the basis of his title. An examination of the case fails to disclose any materiality to or bearing on the situation involved here, and it is not suggested how the failure to pay taxes is in itself an estoppel against the owner from claiming his rights as such owner, unless, for failure to pay taxes, his interests have been cut off by the sale and transfer. It is further contended that plaintiff could not maintain this action unless before action he tendered defendant the full amount of all taxes, interest, and -charges arising out of the sale of the premises for the nonpayment of taxes involved in the proceedings on which her tax titles are based. The argument that the failure to so tender payment of these sums would be a deprivation of defendant’s right to the sums so paid for taxes, interest, and charges on account of the owner’s delinquency, and would thus deprive her of the interest acquired in the lands by such payments, is without merit, in view of the provision - of the statute providing that such purchasers shall be reimbursed the sums paid for tax certificates held by them, if the title fails on account of defects or deficiencies in the tax proceeding. ’ Sec. 3087, Stats. (189.8), makes provision for _the repayment of the amounts paid for taxes, interest, and charges by holders of certificates on the land of such delinquent owner in case he establishes the right to hold the premises against the claims of such purchasers of tax certificates. It is averred that [452] under the circumstances the court was not justified in compelling defendant to pay the costs of the action. We find nothing in the case which should relieve defendant from this obligation to the plaintiff as the successful party in an action in ejectment. In such actions the right to costs is governed by the rules applied to actions at law. Counsel places reliance on the claim that Price county obtained an absolute fee in the lands under tax deeds taken by it in March and June, 1899, which title defendant acquired subsequently by conveyance from the J. L. Gates Land Company, the grantee of the county. It is claimed that under secs. 1191, 1191a, Stats. (1898), this title became absolute when these tax deeds issued, because the county then held unredeemed tax-sale certificates on the same property “for two successive years subsequent to the date of the sale on which the deed” issued, and that the land was therefore exempt from taxation until sold by the county. It appears that the county sold and conveyed the lands in July following to the J. L. Gates Land Company. This rendered them subject to taxation from that time. This statute in no way cures defects in the tax proceedings and the deed based thereon, and precludes no person from showing title and right of possession, and from assailing' any claim to the premises under the tax deeds taken by the county for any defect or insufficiency rendering the deeds invalid. Under the facts and circumstances before us we find plaintiff’s claim that these statutes in no respect strengthen defendant’s title or impair that of plaintiff fully sustained. Secs. 1189 and 12107i have no application to the issues of this case and therefore need not be considered. Proceeding to an examination of the tax proceedings under which defendant claims title, we find that the treasurer omitted to subscribe his name .to the delinquent return, but subscribed the affidavit attached thereto, and also an omission to carry out after each description in separate lines the township, range, and at times the section number, all of which [453] appeared at tlie top of the respective columns. The return also contains a separate column, headed “Five per centum collection fees,” giving the amount of such charge in addition to the total amount of the unpaid tax returned. The plaintiff also claims that the proceedings subsequent to the delinquent return are defective and insufficient, in that the affidavits of the proof of publication fail to show that the notices were published “once in each week for four successive weeks;” that the newspaper in which the notices were published was published continuously once in each calendar week for two years immediately before the date of such notices; that the affidavits of publication were not transmitted to the county treasurer within six days after the last legal publication, pursuant to sec. 1132, Stats. (1898); and that an unauthorized printer’s fee of twenty-five cents was included as a charge on every description of the land sold. In the case of Cole v. Van Ostrand, post, p. 454, 110 N. W. 884, it is held that the failure of the treasurer to subscribe the delinquent return and the inclusion of the five per centum collection fee, as in this case, do not constitute such defects in the return as to affect the validity of the proceeding, but that the failure to transmit to the county treasurer within six days after the last legal publication the affidavit of the printer showing publication of the notice, and including a twenty-five cent charge therefor, renders the sale defective and insufficient and makes it invalid. The descriptions of the different parcels in the delinquent return are sufficiently definite to indicate with sufficient certainty the parcels on which the taxes were assessed and levied, and meet the requirements of sec. 1047, Stats. (1898), prescribing that “any descriptions of land which shall indicate the land intended with ordinary and reasonable certainty and-which would he sufficient between grantor and grantee in an ordinary conveyance shall be sufficient.” Cate v. Werder, 114 Wis. 122, 89 N. W. 822; Boyington Co. v. Southwick, 120 Wis. 184, 97 N. W. 903. The claim that the tax proceedings are defective because it [454] is not shown that the newspaper in wbicb the notice was published had been published continuously once in each calendar week for two years immediately before the date of such sale is not sustained. In the absence of proof showing that the newspaper was not so published, -it must be presumed that it was one which met the requirements of the statute in this-respect. We find no error in the record. The trial court pronerlv awarded judgment for the plaintiff. By the Court. — Judgment affirmed. A motion for a rehearing was denied April 30, 1907.