66 Wis. 171 | Wis. | 1886
This is an action of ejectment. The bringing of it was a confession that the plaintiff -was not in possession. It was, moreover, a confession that the defendants were in the actual or constructive possession. Without such possession in the defendants, or some of them, the action could not be maintained. In such an action, the plaintiff must recover, if at all, upon the strength of his own title, and not on the weakness of the defendant’s title. It is an action to try the title and right to the possession of land. More accurately, it is an action to determine the plaintiff’s title, and his right to the possession. The possession of the land being confessedly in the defendants, their title is not in issue, and not before us for consideration. The plaintiff claims to be the owner in fee under the original title. To recover, it was necessary for him to establish such claim and right to the possession. The plaintiff traced his title from the United States. The only question is
Oh. 132, Laws of 1866, was published April 25, 1866. The first section of that act declared that “ whenever any lot or tract of land shall be or shall have been, for five successive years, sold for taxes, and bid in for the county, and remain unredeemed, the title thereof shall absolutely vest in the county where such lot or tract of land is situate; and, when so vested, shall not be liable to assessment for taxes of any kind or description.” The second section provided that “ the county board of supervisors shall have full authority to sell and convey any and all such lands, the title to which has become vested in the county, on such terms as they shall deem proper, and the proceeds therefrom shall be paid into the general or contingent fund of the county.” The third section declared that “ nothing herein contained ■shall be so construed as to apply to lands owned by minors,
Much discussion has been given to the meaning of this act. It is of first importance to know- just what its terms imply, assuming it to be valid. The act was not only prospective, but retrospective. Hence the words in the 'first section, “ whenever any lot or tract of land shall be or shall have been, for five successive years, sold for taxes,” etc. The several sales mentioned were made on the second Tues-' day of May in each of said years. Oh. 34, Laws of 1861. It follows that the last of said sales was made only a few days after ch. 132, Laws of 1866, went into effect. Four of the sales had been made before that act went into effect; that is to say, they were made on the second Tuesday of May in 1862, 1863, 1864, and 1865, respectively. Upon each of those four sales tax certificates had already been duly issued to the county. The proviso in the third section quoted prevented the provisions of that act from applying to any such tax certificates which had thus been previously issued, “ until two years from and after the passage and publication of ” that act, which would be April 25, 1868. But it was not and could not be definitely known, at the time that act went into effect, that it would ever apply to all or any of said tax certificates which had thus already been issued. For aught that was then known, some of them, or even all of them, might be redeemed before April 25, 1868. Had all been redeemed before that date, then that act never could have applied to any of those outstanding certificates. The same is true had the sale of 1865 alone been redeemed before .April 25, 1868; for the title to no piece of land could vest in the county under that act
Upon the facts disclosed in the record, the act was retrospective as to the four successive sales which preceded its publication, and prospective as to the one sale which occurred a few days after its publication. Still; the owner had two full years after such publication to redeem from the four prior sales and certificates; so the redemption of one of them would have broken the continuity of five successive sales, and that alone would have prevented the original title from becoming divested. But the owner had only a few days less than two years to redeem from the sale made, and the certificates issued immediately after the publication of the act. • Either of such redemptions would have effectually prevented the title from becoming absolutely vested in the county, April 25,1868, under the provisions of
It is urgently contended, with much elaboration, that the words “remain unredeemed,” in the first Section, have no reference to the termination of the two years mentioned in the proviso in the third section, nor to the time of the completion of the five successive sales mentioned in the first section, but to the three years given to the owner or occupant of any land sold for taxes for the redemption thereof, by sec. 18, ch. 22, Laws of 1859. There are several serious objections to any such construction. That section not only gave to such owner or occupant three years within which to redeem such land, but in like manner gave him the right to “ redeem any such lands, or any part thereof, or interest therein, at any time before the tax deed executed upon such sale” should be “recorded,” and provided that when so redeemed such deed should be void. Sec. 1165, R. S.; Hewitt v. Week, 59 Wis. 447. If the words “remain unredeemed” had any reference to the right of redemption given by that section, then they necessarily covered and included the entire right to redeem thereby secured. If they covered and included such right, then ch. 132, Laws of 1866, was ineffectual for any purpose; for, by recording such tax deed, such right
But such construction would be in direct conflict with the language of ch. 182, Laws of 1866. That act declared, in effect, that the title of any lot or tract of land should absolutely vest in the county “ whenever ” it should be sold for taxes “ for live successive years, . . . and bid in for the county, and rmnain wiwedeemeclP It required (1)' that the lot or tract of land should be sold for taxes for five successive years; (2) that it should be bid in for the county; (3) that it should remain unredeemed. These three conditions were the only requisites therein contained for absolutely vesting the title in the county. The word “ whenever,” as used, necessarily related solely to the time of the concurrence or co-existence of these three conditions. No other condition was included therein. We have no authority to include another by judicial legislation. The two-years proviso mentioned was not a condition in the sense we are now considering. It merely fixed the time when the provisions of the act should apply to such tax certificates as had been issued prior to its passage and publication. It has already been' sufficiently considered. The word “ whenever,” in the first section of ch. 132, Laws of 1866, was clearly used as an adverb of time. To say that it did not refer to the time of the co-existence of the three conditions named in the act itself, but did refer to the time of recording the tax deed, or to the time for redeeming from tax sales as provided in another act, passed at a different time and for a different purpose, would not only be a strained and unnatural construction, but peculiarly absurd. If it referred to the time of recording the tax deed, then was the tax deed to be issued upon the first, second, third, fourth, or fifth tax sale? It could apply to no piece of land until there should be five successive sales for taxes in as many years, nor then unless
Again, each of said acts sought to attain an object entirely different from and independent of the object sought to be secured by the other. One was general, applying to every tax sale, regardless of who was the bidder, or whether there had been any other tax sale. The other could only apply where there should be five successive sales for taxes of the same piece of land, in five successive years, and then only when such land should b¿ bid in for the county at each of such sales, and remain unredeemed at the time of the co-existence of the three conditions named. The words “ remain unredeemed ” constituted one of such conditions. As indicated, they were significant upon every conceivable state of facts to which the act was applicable. They were in no sense indefinite or uncertain. They were essential to fully express the intention of thé legislature in preserving the substantial rights of the land-owner under the act. Without them the act would, in terms, have divested the title of such owner, even had he redeemed from one or more of such five successive sales. But such was not the purpose of the legisla-
There is no claim that ch. 132, Laws of 1866, was expressly repealed or superseded until the enactment of ch. 166, Laws of 1869; nor is there any good reason for holding that it was, prior to that date, repealed by implication. It is said in one of the briefs of counsel that during that time there were some amendments made to the tax laws worthy of consideration. Reference is there made to chapters 112, 113, Laws of 1867, and chapters 75, 157, Laws of 1868. Ch. 112, Laws of 1867, was “ for the limitation of tax certificates.” It barred the issuing of a deed or the commencement of an action on a tax certificate, after the expiration of six years from the day of sale; .and provided that such provisions should “ not apply to certificates owned by counties or municipal'corporations, or by their assignees, until the expiration of six years from the date of assignment of any such certificate.” That chapter was amended by ch. 56, Laws of 1868, adding a saving clause in case of injunction. Oh. 113, Laws of 1867, was “in relation to tax deeds,” and provided for giving notice of application therefor in case of “ actual occupancy or possession; ” and that was amended by ch. 157, Laws of 1868, so as to require proof of non-occupancy or possession after March 13, 1868. Ch. 75, Laws of 1868, enlarged the authority given to the county board of supervisors by sec. 2, ch. 132, Laws of 1866, so as to enable them to assign such tax certificates and tax deeds issued thereon. Rone of the acts referred to prevented, nor was in any way inconsistent with, the title to the 240 acres of land in question being absolutely vested in the county, April 25, 1868, as indicated. The title of the original owner having, according to the terms of the act, become divested at that time, and the same having thus be
The question whether ch. 132, Laws of 1866, was unconstitutional and_ void, as urged by the learned counsel for the plaintiff, still remains to be considered. It is said to have been special or class legislation. In a sense, it is true. In a limited sense, statutes for the collection of taxes are frequently special in respect to individuals laboring under disabilities; as the insane, minors, married women, and the like. The validity of such laws has not, to our knowledge, been questioned in this court on that ground. This was an act entitled “An act to vest the title of unredeemed lands in counties.”- It applied only to cases where the three conditions named co-existed. In most counties no such case occurred, as people generally paid their taxes. If any failed, and their lands were sold for taxes, they were generally redeemed before there were five successive sales. Even where there were five successive sales, none of which were redeemed, still it seldom occurred that every one of such sales was bid off for the county. The right of the county to bid at all was statutory. In fact the county could not, under the general law, be a competitive bidder at the sale. The land could only be bid off for the county when-it could not be sold for the amount of the tax. Sec. 9, ch. 22, Laws of 1859. The same statute is still in force. Sec. 1138, R. S. But the class to which the act applied was still more limited, for the third section quoted expressly prohibited its application “ to lands owned by minors,” or persons who were “ non compos mentis, insane, or under guardianship.” The very narrow limits of the class to which the act applied, and its very short duration, may answer the query propounded on the argument: Why has not
So it appears that the county was not a voluntary purchaser. It was forced to purchase in the cases named, and is still forced to purchase in like cases. The county of Marathon was the agency through which the state levied and collected its taxes in that county. It was certainly competent for the state to make counties such agents, and even to make them liable as principal debtors for the quota of the state tax assessed within their respective limits. “ Provisions to this effect are common in the statutes.” Cooley on Taxation (2d ed.), 468; 1 Desty on Taxation, § 97. Legislation respecting municipal agencies in the collection of taxes must necessarily be special. It is wholly unlike discrimination between individuals laboring under no disability, or even discrimination upon general questions. The act in question was a public law, and every person owning land in the state was conclusively presumed to know of its provisions'. Knowing the law, it was entirely optional with him to pay or redeem; or take his chances as to the effect of the statute.
The authority of the legislature to shorten the time for redeeming from some of the certificates up.to two years, cannot be seriously questioned, under the numerous decisions of this court on the subject. The right to apply such shortened limitation to certificates which had already been issued cannot be doubted, under the same decisions. Thus, the validity of the statutes limiting the time for bringing actions to cancel tax certificates and tax deeds previously issued to nine months has frequently been sanctioned. Secs. 1210cü, 1210<?, R. S. Under those decisions it was competent for the legislature to bar any action commenced after the
The act in question is said to be in violation of that clause of sec. 1, art. XIY of the amendments to the constitution of the United States, which declares that “ no state shall . . . deprive any person of . . . property without due process of law.” The expositions of that clause by the supreme court of the United States are so recent as to require nothing more than a statement of the conclusions there reached, and some of the reasons there given. Hagar v. Reclamation District, 111 U. S. 701; Kentucky Railroad Tax Cases, 115 U. S. 321.
In the first of these cases it is, in effect, held that the clause of that section quoted was not infringed by a state law authorizing the imposition of a tax or assessment upon property according to its value, if the owner has an opportunity to question the validity or the amount of it, either before that amount is determined, or in subsequent proceedings for its collection. It is there said by Mr. Justice Fibld, in effect, that what constitutes “ due process of law ” may be difficult to define with precision, so as to cover all cases; that it is wiser “ to arrive at its meaning by the gradual process of judicial inclusion and exclusion, as cases presented for decision shall require, with the reasoning on which such decisions may be founded.” Pages 707, 708. It means that those general rules established in our system of jurisprudence for the security of private rights must be observed. Ibid. The learned justice then observed: “ Undoubtedly, where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the party to be affected shall have notice and an opportunity to be heard; so, also, where title or possession of property is involved. But where the taking
That opinion was sanctioned by the unanimous court, and followed in the more recent case cited, where it was said by Mr. Justice Matthews that it had been repeatedly decided by that court “ that the proceedings to raise the public revenue by levying and collecting taxes are not necessarily judicial, and that ‘ due process of law,’as applied to that subject, does not imply or require the right to such notice and hearing as are considered to be essential to the validity of the proceedings and judgments of judicial tribunals. Notice by statute is generally the only notice given, and that has been held sufficient.” Page 331.
In this state the supervisors, clerk,- and assessors of each town, constitute a “ board of review ” for such town. Sec. 1060, R. S. It was first established under that name by sec. 24, ch. 130, Laws of 1868; and hence, if that had been
If, as suggested by counsel, any of the 240 acres of land in question were not, when any of said taxes were assessed sthereon, liable to taxation, or such taxes thereon had been paid, or the lands had been redeemed from such taxes, then we perceive no reason why the land-owner might not have brought his action to restrain the collection of the tax, or the sale of the land, or to set aside any of said «tax certificates, especially within the two years given by ch. 132, Laws of 1866. In such action all the opportunities were given to the tax-payer, to use the language of one of the cases quoted, “ to be heard respecting the assessment which can be deemed essential to render the proceedings due process of law.” Besides, it may be questionable whether, in
Another question involved is whether, when applied to certificates held bjr the county at the time of the passage of the act in question, it was competent for the legislature to divest the original owner of the legal title, and vest the same in the county without deed, and by the mere operation of the act and the failure to redeem within the two years limited. The question is entirely new, so far as this court is concerned. It is not the case of a simple forfeiture without any sale; yet there are respectable authorities upholding such legislation. Thus, in Usher's Heirs v. Pride, 15 Grat. 190, lands returned delinquent for nonpayment of, taxes between 1820 and 1831 were forfeited by the act of April 1, 1831, if not -redeemed within a time fixed, which was not done, and it was held that the forfeiture became complete at the end of the period fixed, and could only be. released by redemption in the mode provided by statute. It was also held in that case that the heir of a patentee of land forfeited for nonpayment of taxes, and not redeemed, could not maintain ejectment for it. against a party who had entered upon it peaceably, though the tenant had no title to the land. The validity of such legislation had pre
Of course, the purchase of the lands by the county at the tax sales in question only gave it the usual rights of a purchaser. When ch. 132, Laws of 1866, went into effect, April 25, 1866, the county had already bid off the 240 acres of land on four successive sales. Such sale, of itself, worked a forfeiture subject to redemption. Biggins v. People, 106 Ill. 271. The county was then entitled to a tax deed on the first sale. By virtue of such purchase and right to a tax deed, it then held the equitable title. Eaton v. Sup'rs Manitowoc Co. 44 Wis. 492. It then might have acquired, the legal title by proper tax deed upon the certificates it held. But the legal title, with the right of redemption, was still in the original owner. In that condition of things, the '
IYo must hold that it was competent for the legislature to dispense with the execution of a ta.x deed in the cases coming within the provisions of ch. 132, Laws of 1866, and in such cases to vest the title in the county at the end of the two years. The numerous cases involving the same questions here presented, said to be pending, may have induced unnecessary prolixity in this opinion.
I am unable to agree with my brethren, and therefore most respectfully dissent from the opinion and decision to the effect that the title to the lands- the plaintiff
What do these words, or other equivalent words, mean, when used in other parts of our statute? Sec. 1176, R. S., after providing the.time and terms of sale and redemption, authorizes a deed to be issued to the purchaser of the lands so “remaining unredeemed.” Sec. 1178, in prescribing the form of a tax deed, requires it to be stated in the preamble “that said lands are now unredeemed” from such sale. Sec. 1191, R. S., provides that “ when the county takes a tax deed on a certificate of sale, and it holds tax certificates of sale, unredeemed, on the same property, for two successive years subsequent to the date of sale on which the deed issues, including certificates prior to these statutes, it shall thereafter be exempt from taxes until sold by the county.” This use of the word “ unredeemed ” will be found precisely analogous when we speak of the meaning given to it in the
■ Just as soon as the fifth or last year’s sale is made to the
Before the three years time of redemption had expired on the fifth year’s sale in this case, this very bad law, which sought to confiscate the lands of private owners whether lawfully assessed or sold for taxes or not, was repealed, and the county, or perhaps some speculator who has bought these .lands from the county, is now attempting to obtain this absolute title by such a false and forced meaning of these words, so plain and common in all the statutes. Such a construction of the law deprives the owner of these lands of numerous legal and constitutional rights which he had at the time of the sale. A sale is a matter of contract, and these rights become a part of the contract of sale, by which he may redeem within three years, and have certain notices given him before his title is vested in the county or purchaser. But I care not to give any reasons against
By the Court.— The judgment of the circuit court is affirmed.