34 Wis. 86 | Wis. | 1874
It is urged in support of tbe complaint, that it states a case calling for tbe interposition of a court of equity. The relief asked is, that tbe court will grant a perpetual in-junctionrestraining tbe prosecution of an action previously commenced by the defendant Annexe Rdf against this plaintiff, on a tax deed, under tbe provisions of cb. 22, Laws of 1859. It is alleged that the plaintiff is the owner of the lands described in tbe tax deed, and was such owner when they were sold for taxes in September, 1869 ; that she was then and is now a widowed woman, entitled by law to the term of five years from the tax sale to redeem the lands; that tbe tax deed was issued in August, 1878, and an action was commenced by tbe grantee therein named against her for tbe purpose of barring her right, title and interest in tbe lands; and that the defendants in this suit threaten to move tbe former action to judgment, unless she put in her answer to said action and deposit forthwith tbe amount ■required by law to enable her to answer. This constitutes the. principal ground upon which equitable relief is sought in this suit. One of the objections taken to the complaint on demurrer is, that the plaintiff has a full and ample remedy for the protection of her rights in the action previously commenced by Annette Relf against her upon the tax deed, and that consequently this suit is unnecessary and vexatious. It seems to us that this objection is insurmountable, and must prevail.
We are unable to perceive why the court in the action already commenced cannot do ample justice between the parties, and fully secure to the plaintiff her right of redemption. The law unquestionably gives her five years from the tax sale to redeem the lands. Ch. 89, Laws of 1868, amending sec. 20, ch. 22,
It is admitted that the doctrine is well settled that a court of equity will not interfere by injunction to stay proceedings in another equitable suit in the same court (Wilson v. Jarvis, 19 Wis., 597); but it is said that the court, in enforcing the remedy given by ch. 22, does not exercise an equitable jurisdiction. But this, we think, is a mistake. The relief granted or authorized by the statute is equitable relief. If the judgment is in favor of the plaintiff and against the defendant claiming the land in the tax deed, such judgment, by force of the statute, forever bars such defendant and all others claiming under him after the commencement of the suit, from all right, title or interest in said lands; and if the judgment is in favor of the defendant, such judgment shall direct the plaintiff to release to such defendant all right or claim to the lands under the tax deed. Secs. 44 and 45. These sections and other provisions of the law clearly show that the jurisdiction which the court exercises in the proceeding to foreclose the tax deed is to a certain extent equitable in its character (Wakeley v. Nicholas, 16 Wis., 588); and the power of the court in the action of Annette Belf against this plaintiff is entirely adequate and competent to protect her rights. There was therefore no necessity for the plaintiff to institute this suit to enjoin the action previously commenced, when she can avail herself of all her rights and defenses with full effect in the original suit.
The counsel for the plaintiff suggests, however, that she would not be permitted to answer in the action to foreclose the tax deed, and set up the defense that she was a widowed woman
By the Court. —The order of the circuit court overruling the demurrer is reversed, and the cause remanded with directions to dismiss the complaint.