Madler v. Kersten

Winslow, C. J. It is evident that the plaintiffs proved no title to the lands in question. A deed from one not shown to have been in possession of the land is no proof of title. Hamilton v. Beaudreau, 78 Wis. 584, 47 N. W. 952; Cartwright v. Hall, 88 Minn. 349, 93 N. W. 117. An action to remove a cloud from the title can only be maintained by one who shows title in himself, either legal or equitable, or at least shows that he owns a lien or incumbrance on the land. Sec. 3186, Stats.; Kimball v. Baker L. & T. Co. 152 Wis. 441, 140 N. W. 47. This seems to be simply good common sense, and good common sense is frequently law. The trial judge disposed of this difficulty by saying that the defendants did not at any time question the original ownership of the property but only the validity of the tax deed. The record, however, shows that plaintiffs’ title was put in issue by the answer, and we have found nothing in the bill of exceptions showing that the issue so raised was ever waived or abandoned. It is true that the active litigation centered about the validity of the tax deed, but, in the absence of some affirmative withdrawal of the defense of lack of title or some act misleading the other party as to his position, the defendant may still stand upon his defense. [428] A tax certificate is real property. This was decided in Eaton v. Manitowoc Co. 44 Wis. 489, and the decision there made has never been overruled and has become a rule of property. Being real property, the tax certificate in the present case did not become assets' in the hands of the executor and hence could not be assigned by him to the defendant ; but passed to the trustees to whom the real estate was devised by the will, who, however, would have no authority to execute the trust until they had given bond as trustees under sec. 4025, Stats. McWilliams v. Gough, 116 Wis. 576, 93 N. W. 550. The defendant therefore acquired no title to the certificate by the attempted assignment. Having no title to the certificate, the tax deed to him was clearly void. It is evident that there ought to be a. new trial in order that the plaintiffs have opportunity to prove title to the premises. If they do so they will be entitled to judgment removing the cloud on their title resulting from the void tax deed upon payment into court for the benefit of the said trustees of the amounts required to be paid by sec. 1210h, Stats. We agree with the trial court upon the proposition that there can be no judgment of specific performance of the alleged contract to convey, resulting from the correspondence with the defendants’ attorney, for the reason that there is no proof; either oral or written, that the attorney had authority to make such a contract. By the Court. — Judgment revei'sed, and action remanded for a new trial.