Coe v. Rockman

126 Wis. 515 | Wis. | 1906

Siebecker, T.

This is an action to cancel certain tax deeds issued to defendant, alleged to be a cloud upon plaintiff’s title and claim to the lands covered by them. If, upon the facts found by the court, plaintiff is either the owner in fee of tbe premises or the owner and holder of any lien or in-cumbrance on tbe land, then, under sec. 3186, Stats. 1898, be is authorized to prosecute this action to test tbe legality and validity of any claim, lien, or incumbrance on such land or any part thereof.

1. One ground of error relied upon is tbat tbe. judgment is defective in that it fails to determine expressly that plaintiff bas a right, title, or interest in the lands, and that it fails to declare that defendant’s tax deeds constitute a cloud upon the right, claim, or title of the plaintiff to the premises. It is true that the judgment as entered omits to expressly adjudicate this point. In the case of Grindo v. McGee, 111 Wis. 531, 87 N. W. 468, an ejectment action wherein the judgment failed to determine the “quality or extent of plaintiff’s title,” as required by the law in such actions, it was held that if defendant’s title be shown to be of no validity he could not be prejudiced by the failure of the trial court to adjudicate the quality of the plaintiff’s estate in the lands, as prescribed by subd. 7, sec. 3084, Stats. 1898, and the error will be disregarded. The court observes:

“The statute (sec. 2829) commands the court to disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.”

The evidence in the instant case is undisputed as to the nature and the quality of plaintiff’s interest, and.this interest, though not expressly determined in the judgment, is fully set forth in the findings of fact by the court. It is not shown, nor can we conceive, how this error can in any way be prejudicial to defendant and call for a reversal of the judgment under the foregoing statute and decision.

2. It is contended that plaintiff has no interest in the premises because his predecessor in title had acquired no interest under the1 judgments of foreclosure hy the Hekla Company as mortgagee of the premises, since the sale was not confirmed. Under such circumstances the Hekla Company held the title and rights of a-mortgagee purchaser at the sale and could take any steps necessary to perfect its rights by confirmation. The subsequent conveyance of the lands by warranty deed to the American Mortgage Security Company vested this company with, all these rights, interests, and claims, and these were subsequently conveyed to the plaintiff. This made plaintiff the owner and holder of such a lien as gave him, under the provisions of sec. 3186, Stats. 1898, the right of action to test the legality of defendant’s tax deeds.

3. It is further urged that the security and investment companies are Minnesota corporations which have not filed copies of their charters in the office of the secretary of state as required by sec. 1770Z>, Stats. 1898. The record shows that these corporations acquired their interests in the lands before the enactment of this statute. Under the construction given this section in Chicago T. & T. Co. v. Bashford, 120 Wis. 281, 97 N. W. 940, their interests were in no way divested or impaired by this statute, and they could properly convey them.

4. It is claimed that the court could not hold the tax deeds void for any irregularities other than those alleged in the complaint. The court finds specifically wherein the proceedings for the sale were defective. Proof of these irregularities was received without objection under the complaint, which set forth a number of irregularities and then alleged “that for said reasons and others said certificates were void, and the tax deeds issued to defendant thereon were null, void, and irregular.” We see no valid reason why the evidence received without objection was not properly before the court to test the validity of the proceedings on which these tax deeds issued. Nor could the action of the court be held prejudicial for any variance between the pleadings and the proof, under the rule re-affirmed in the case of Packard v. Kinzie A. H. Co. 105 Wis. 323, 81 N. W. 488, that “on appeal, in support of the judgment appealed from, the findings and proceedings will be deemed amended in accordance with the facts proved when the evidence was not objected to below, or the proper amendment will be made on appeal.” The error complained of also falls within the scope of sec. 2829, Stats. 1898, as one not affecting the substantial rights of an adverse party, and should be disregarded on. appeal as not stating grounds for a reversal.

5. It is argued that the sheriff’s deed, purporting to convey the title to lands under the attempted foreclosure by advertisement, was absolutely void because it failed to comply with the requirements of the statutes providing for such proceedings. This exception goes to irregularities in the foreclosure proceeding. The premises were sold in this proceeding by the sheriff of the county wherein the property is situated on September 20, 1890, and a deed issued to the purchaser October 1,1891. The irregularities complained of are covered by sec. 8543a, Stats. 1898. Since the foreclosure and sale took place' more than five years before the commencement of this action, defendant is precluded from interposing them as a defense.

By the Court. — Judgment affirmed.