71 Wis. 568 | Wis. | 1888
The learned counsel for the plaintiff with much ingenuity of argument maintain that the judgment of the circuit court herein is erroneous because (1) on general principles of law the absolute title of the land in controversy was in the United States in 1862, when the tax was levied thereon which is the basis of the tax deed of 1866, and hence the land was not then taxable; and (2) if plaintiff then owned an interest in the land otherwise taxable, the same
I. Laying out of view for the present the effect of ch. 105, Laws of 1861, the first question to be determined is, Had Watkins a taxable interest in the. land in 1862? In considering this question it must be borne in mind that Watkins, the plaintiff’s grantor, made an effectual entry or location of the land in 1857, paid therefor, and received the usual certificates thereof from the proper local land officers of the government. That this vested in Watkins the entire equitable title to the land and beneficial interest therein, the United States holding only the naked legal title in trust for him, is settled in this state beyond controversy. Of course Watkins’ interest was taxable.
What happened before 1862 that divested Watkins’ title, and thus relieved the land from liability to taxation ? Nothing whatever except that in 1857 the commissioner of pensions without authority notified the commissioner of the general land office that the validity of the land warrant No. 50,308, located on the land in controversy, was impeached, and requested the latter to withhold the patent therefor. The commissioner of the land office complied with such request, and no further action was taken in the matter until June 15, 1863. It requires no argument to show that these acts did not and could not affect the title of Watkins to the land. At most they merely delayed him in obtaining the legal title which the United States then held in trust for him, and which in its own good time it conveyed to him.
The case of Wis. Cent. R. Co. v. Price Co. 64 Wis. 579, in principle is identical with the present case. The railroad company was entitled to patents from the United States
We hold that, from the location of the land by Watkins in 1857 down to the sale thereof in 1863 for nonpayment of taxes, the entire equitable title to, and beneficial interest in, the land in controversy was in Watkins, by virtue of his entry, location, and purchase thereof, and hence that the same was taxable in 1862 unless exempted from taxation by the act of 1861.
II. We are now to determine whether ch. 105, Laws of 1861, exempted the land from taxation in 1862. It is provided in sec. 1 of the act that in all cases where entries of land, made at any of the United States land offices within this state, have been suspended by authority of the secretary of the interior, the commissioner of the general land
It is very doubtful, to say the least, whether the entry or location of the land in controversy was ever suspended by any authority specified in sec. 1. But, assuming for the purposes of the case that such entry or location was so suspended, the suspension occurred November 21, 1857, when the commissioner of pensions requested the commissioner of the land office to withhold the patent, which request was complied with. This occurred before the passage of the act of 1861. Sec. 3 of the act required Watkins to file the certificate specified therein with the clerk of the board of supervisors within one year from the passage of the act, that is to say, by March 25,1862. There is no proof in the case that this was done. We think the provisions of sec. 3
III. It is claimed on behalf of the plaintiff that the defendants established on the trial a title under Hanson to but an undivided one-half of the land in controversy, and that it was error to give them judgment for the possession of the whole. It is elementary that the plaintiff in ejectment recovers- (if at all) upon the strength of his own title, and not upon the weakness of that of his adversary. The plaintiff failed to establish any title to the land, and was necessarily defeated in the action no matter who was the owner. The land was entirely vacant and unimproved. Yet, although it was not in the actual possession of any one, the statute required the plaintiff to allege in her complaint that the defendants unlawfully withheld the posses
Upon the whole case we conclude that the judgment of the circuit court is correct and should be affirmed.
By the Court.— Judgment affirmed.