22 Wis. 103 | Wis. | 1867
Prior to 1859, the law in force made tax deeds conclusive evidence of the regularity of the proceedings, and they were only liable to impeachment by showing that the land was not liable to taxation, or that the taxes had been paid. The plaintiff was the owner of a tax title, the deed for which was issued under that law.
By chap. 22, Laws of 1859, a new policy was adopted with respect to tax deeds to be thereafter issued. A new remedy was devised, by which the owners of such deeds could bring an action to quiet their titles. They could make the former owners, and all persons claiming under them, parties (sec. 35); and if they could not ascertain the proper persons to make defendants, they could proceed against any persons as absent defendants, describing them as “unknown owners.” Sec. 46. The judgment, if in favor of the plaintiff, would forever bar the defendants from
On devising this new remedy, so beneficial, in many respects, to the owners of tax titles, the legislature changed the rule making the tax deeds conclusive evidence of the regularity of the proceedings, and provided that they should be only prima fade evidence. But as a condition to the right to set up any other defense than that the land was not liable to the tax, or that it had been paid, or that the deed was never executed by the officer whose name was subscribed to it, the defendant was required to deposit, for the use of the plaintiff, the whole sum for which the land was sold, and all subsequent taxes which plaintiff' had paid, with twenty-five per cent, interest; which the plaintiff would he entitled to, if the defendant recovered judgment. On making such deposit, the defendant was expressly authorized to set up any other defense that would “ avoid the conveyance.” And there can be no doubt that this language in sec. 38 was designed to allow the defendant, on complying with those conditions, to avoid the deed by proving any of the irregularities which, by the general current of decisions, are held to defeat tax titles.
By sec. 2, chap. 138, Laws of 1861, as amended by chap. 277, Laws of 1861, the provisions of the act of 1859, from sec. 35 to 48 inclusive, are extended and made applicable to all prior tax sales and conveyances.
The plaintiff, owning a deed issued under the prior law, ■availed himself of the new privilege given by these acts, and brought this action for the purpose of quieting and establishing his title. Counsel suggested, on the argument, that it was not certain that this action was brought under this law, and that it might be considered an action of ejectment. But this suggestion hardly deserves a serious
The defendant complied with the provisions of the act in respect to making the deposit, and on the trial he offered to prove, and the plaintiff admitted, various irregularities in the tax proceedings, which are undoubtedly sufficient to avoid the conveyance, unless the plaintiff is protected against them by the conclusive effect given to his deed as evidence, by the law under which it was issued. He insists upon his deed as conclusive, and claims the right to avail himself of the advantages of this new remedy, without subjecting his deed to any of the conditions of the act, which would give it any less or different effect from what it would have by the law under which it was executed. It is claimed, however, on the other hand, that this act gives the owners of such tax deeds a new privilege, and that if they bring an action under it, asking for its benefits, they thereby subject themselves to its disadvantages, in accordance with the maxim qui sentit commodum sentir e debet et onus. "We think this conclusion correct.
Of the legislative intent there would seem no room for douht. Those provisions before referred to, making the deeds offered in any action under that law, only prima facie evidence of title, and that the defendant may make the deposit, and, on making it, may set up any other defenses besides those specified, (which are the* same that he might
The only remaining question, therefore, is, whether these provisions, as applied to such prior deeds, are unconstitutional. The plaintiff claims that they are, and that they impair the obligation of his contract. It may readily he conceded that the legislature could not make such provisions imperative as to such prior deeds, and apply them in actions to which the owner was previously entitled. This would impair the obligation of the contract, as this court has held in the cases cited by the plaintiff: Robinson v. Howe, 13 Wis., 341; Smith v. Cleveland, 17 id., 556. But whether they could not provide a new remedy, giving the owners of such deeds new rights and privileges which they did not before have, and declare that, as a condition to the enjoyment of these, the owners should subject their deeds to certain new defenses to which they would not otherwise have been subject, is an entirely different question. And we think they may well do this. In such a case no right of the owner is interfered with. If he chooses not to avail himself of the new remedy, he can resort to the old, and insist upon all his old rights without any change or diminution. It is entirely optional with him, whether he will resort to the new. But if he does, he takes it subject to its conditions. He must take its burdens as well as its benefits. He cannot adopt such parts as are beneficial to .him, and reject the rest. Counsel argued that the plaintiff could well avail himself of all the benefits of this act, and yet object to any of its provisions that are unconstitutional.
It is a familiar rule that a party cannot be allowed to claim under, and at the same time repudiate, any instrument. Its most usual application is in the case of contracts and conveyances. But it is quite as applicable to that class of statutes which, like the present, without being imperative, grant new privileges, subject to certain conditions. It was so applied in The People v. Murray, 5 Hill, 468. That case was relied on in Robinson v. Howe, where we held its principle inapplicable, for the -reason that the owner of the tax deed did not claim or ask any new right under the law to which he objected. His taking a deed merely in the form prescribed by it, was not such a claiming under it as precluded him from objecting to its provisions. But here, the case of The People v. Murray is directly applicable, and furnishes a striking illustration of the principle contended for. The legislature had authorized certain persons to erect
Other illustrations might be referred to, where parties are held to waive constitutional rights by asking for new privileges to which such waiver is attached as a condition. Thus a criminal who has been convicted, if he moves for and obtains a new trial, cannot be heard to object to being tried again on the ground that he cannot be twice put in jeopardy.
Our view of the character of this act is also confirmed by the decision of the supreme court of the United States in Van Allen v. The Assessors, 3 Wall., 573. The court there held the provision of the National Banking Act, subjecting federal bonds to state taxation when used as a basis for banking, valid, notwithstanding the bonds had been issued under a law exempting them from state taxation. And they put it upon the ground that the act conferred new rights and privileges upon the bondholders, and that the tax was the condition to those new rights and privileges.
Ve are of the opinion, therefore, that the plaintiff, by bringing this action, voluntarily waived all rights inconsistent with the provisions of this act, and subjected himself to all its conditions. And the irregularities admitted being such as should avoid the deed, the defendants were entitled to judgment in pursuance of the provisions of sec. 45 of the act.
The judgment must therefore be reversed, and the cause remanded with directions to enter such judgment for the defendants.
By the Court.. — Ordered accordingly.