St. Croix Consolidated Copper Co. v. Guaranteed Investment Co.

ViNjn, J. Defendants claim, inter alia, that the statute ■ of limitations has not run on their first tax deed because -of the commencement, pendency, and dismissal of plaintiff’s ejectment action. Such action was begun June 28, 1912, seventeen days after the.recording of the tax deed, and was [461] not dismissed until April 28, 1916. AYhen it was begun, the statute of limitations had not run on defendant’s tax deed and it was pleaded as a defense therein. No adjudication as to the merit of that defense has ever been made, because the first action was dismissed by plaintiff and the court held that it could not be inquired into in this action because the statute of limitations had run upon the tax'deed. Sec. 4250, Stats. 1915, was enacted to cover just such a situation as is here presented, and to prevent a plaintiff from getting rid of a defense by permitting the action wherein it is pleaded to remain untried until the statute of limitations has run on it and then dismiss the action. Such section reads: “When a defendant in an action has interposed an answer as a defense, setoff or counterclaim upon which he would be entitled to rely in such action the remedy upon which, at the time of the commencement of such action, was not barred by law, and such complaint 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 by the defendant to recover for the cause of action so interposed as a defense, setoff or counterclaim.” In Home Inv. Co. v. Emerson, 153 Wis. 1, 140 N. W. 283, it was held that the section was applicable to cases of contested titles; that it was a remedial statute entitled to a liberal construction in furtherance of its object; and that though in terms limited to a “defendant” it applied to one who purchased the premises, whose title was in dispute after the commencement of the action. The defendant Marshall Doolittle, who purchased the land after the ejectment action was begun, though not a defendant therein, is therefore entitled to invoke the aid of the statute. Since it permits the defense relied upon to constitute a cause of action in favor of the defendant, it must perforce permit it to be set up as a defense in a second action involving the same subject matter, though it is not so specifically stated. If it did not, its beneficent [462] effect could always be frustrated by a dismissal without prejudice and suing over again. It follows that the court erred in holding that the statute of limitations had run on the first tax deed. Its validity should have been adjudicated, because the statute did not run upon it from the 28th day of June, 1912, to the time of the dismissal of the ejectment action on April 28, 1916. This disposition of the case renders it unnecessary to pass upon the alleged error in the taxation of costs in.the court below. ; By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.