61 Wis. 121 | Wis. | 1884
Lead Opinion
The learned counsel for the defendants frankly admit that the decision in Easley v. Whipple, 57 Wis. 485,
It is elementary law that, in case of wills, extrinsic-evidence is received to explain an ambiguity not apparent on the face of the instrument to be construed. The same rule is applied to.cases of mercantile paper, contracts, and deeds, with a view to ascertain the intention, -though not to vary the contract, of the parties. Broom’s Leg. Max. 608, gives many illustrations where such evidence has been received on the ground that when the ambiguity itself is raised by extraneous circumstances, it may be removed in the same manner. But we are at a loss to understand how that rule can be applied in the interpretation o| a law which this court has held to be plain and unambiguous. It may be true, when it was shown that .Marathon county held no lands by tax deeds prima facie good, that it had no lands to convey under the law; in other words, there was no subject to which that statute applied. But what of that?'. Suppose it had appeared from the evidence that in June, 1867, the county held no lands by tax deeds of any kind, but owned a mass of tax certificates; would it be claimed that these certificates might or could be transferred to the state
We suppose we must arrive at the intention of the legislature in this, as in other enactments, from the language employed in the act itself. The law, in words of clear and precise meaning, authorizes the clerk to convey to the state the designated number of acres; the land to be taken from, etc., in such distinct lots or parcels “as the said county shall now hold by virtue of tax deeds issued upon sales for delinquent taxes heretofore made.” This is clear, plain language, and, as it seems to the majority of the court, leaves no room for construction or interpretation. Whether the legislature would have authorized and accepted a deed from the county which conveyed a title or interest other than that held by virtue of tax deeds valid on their face, it is idle to inquire. It is sufficient to say that this was the interest or title which the law of 1867 contemplated should be conveyed by the county. We therefore do not think there is any ambiguity, latent or otherwise, to be removed or explained by extrinsic
Equally idle, as it seems to us, is the discussion as to the power of the legislature in 1867 to validate the void tax deeds held by Marathon county. The legislature did not attempt to cure such defects in those deeds. “No such language will be found in the law anywhere. ¥e therefore need not consider the question whether the the legislature would have power thus to validate deeds void on their face and divest the title of the original owner. ... It would be a perversion of both the spirit and letter of the law to say it was intended to cure or make good a tax deed where the name of the state as grantor was omittted.” Easley v. Whipple, 57 Wis. 488, 489.
Finding in the record no fact which takes the case out of the ruling in Easley v. Whipple, a majority of the court adhere to the decision there made.
While a reference is made on the briefs of counsel to ch. 83, Laws of 1883, no benefit was claimed for defendants under that statute. There could not well be any advantage derived from it, as it is obnoxious to several insuperable objections.
After what has been said, it is hardly necessary to add that the case does not come within the limitation of sec. 4, which is relied on as a bar.
The cause was tried by the court, a jury being waived. The court finds that the plaintiffs, at the commencement of
This is an action of ejectment, commenced February 6, 1882. The plaintiffs claim title through mesne conveyances from the United States. The defendants claim title under a patent from the state, issued under ,the following circumstances:
January 30, 1867, the board of supervisors of Marathon county and their clerk made, and soon after presented to the legislature of the state, then in session, a memorial, from which it appeared, in effect, that the county was indebted to the state for delinquent taxes in the sum of $20,271.31; that the same had been added to the apportionment of taxes against that county for the year 1866; that, instead of collecting such taxes in money, a vast amount of lands had. been forfeited to the county for taxes, and that the county then held on tax titles and subject to tax deeds upwards of 150,000 acres, amounting to upwards of $100,000 of delinquent taxes, and that a great portion of said lands had not only been forfeited and deeded to the county for the delinquent taxes for one year, but, in many instances, for several years; that the county was unable to dispose of the lands for the amount for which the same were forfeited ; that much of the taxes assessed on personal property had been returned delinquent by reason of the property being removed from the county; that the county was unable to pay the state the amount of such delinquent taxes, and therefore prayed to be discharged therefrom, or, in lieu thereof, that the legislature authorize the state to take, enough of such lands on such tax titles, at a nominal price, or for the sum for which they were forfeited for taxes, to discharge such indebtedness.
In pursuance of that report, ch. 22, Laws of 1867,- was adopted, and was published and went into effect March 6, 1867. The deed from the county to the state, authorized by the act, was duly executed, witnessed, acknowledged, and delivered June 3, 1867, and recorded in the register’s office for Marathon county, June 12,1867. The plaintiffs admitted in the record that up to July 1, 1867, the county of Marathon, in its corporate capacity, held no tax deed of lands in the county except tax deeds omitting the words “as the fact is,” or omitting the state as one of the grantors.
By ch. 100, Laws of 1868, the commissioners of school
By ch. 83, Laws of 1883, it was declared that the true intent and meaning of sec. 1, ch. 22, Laws of 1867, was that the clerk of the board of supervisors of Marathon county should be and was thereby authorized to convey to the state the lands referred to in that section as then held by said county by virtue of tax deeds issued upon sales for delinquent taxes, although such tax deeds might not have been in the form prescribed by law; and that such tax deeds and such conveyance by said clerk should be and were thereby declared to have been and to be as effectual to pass the title of said lands to the county, and from the county to the state, as though said deeds had been in the form by law prescribed; and that the lands described in the deed to the state were the lands thereby intended to be purchased and conveyed, and that said ch. 22, Laws of 1867, was meant
It appears from the evidence that between March 20,-1868, and September 30, 1882, the state had sold and conveyed to sundry parties (including the lands in suit) all of the 40,540 acres of land, except 4,775 acres, and issued patents therefor. The only question involved is the validity of one of those patents under which the defendants claim title.
It is now claimed, and the majority of the court hold, that all this legislation, the conveyance and transfers from the county to the state under the act of 1867, and the several acts, conveyances, and patents from the state under such legislation, are each and all inoperative and without significance. This is held on the authority of Easley v. Whipple, 57 Wis. 485. From the decision made by the majority of the court in that case, my brother Taylor and I dissented. With convictions then entertained strengthened by subsequent arguments and reflection, I should still feel bound by that decision while adhered to, and would cheerfully follow, it as a duty, if the record in this case was substantially like the record in that. But, to my mind, the facts above stated, not present in Easley v. Whipple, clearly distinguish this case from that. The question there involved arose upon a demurrer to the complaint, which alleged, in effect, that the plaintiff therein derived his title to the forty acres of land there sought to be recovered, from the United States; that the defendant. therein claimed and derived his title to the forty through and by virtue of a tax deed void on its face by reason of the omission of the name of the state as a grantor to the county, issued October 7, 1866, and recorded October 10, 1866; the conveyance from the county to -the state above mentioned; a patent from the state to Scott, May 12,1880; and a deed from Scott.to the defendant, July J,.:1S82, and from no other source. The only ground of
The fact here admitted by the plaintiffs in the record, to wit, that the county, at the time of the passage of that act, had no tax deeds valid upon their face, but only tax deeds void upon their face, either by reason of the omission of the words “as the fact is,” or by the omission of the name of the state as one of the grantors, did not appear, and the majority of the court in that case expressly declined to decide the case upon that assumption, but assumed the contrary in these words: “But it is said we must assume the legislature had full knowledge when the law was enacted that all tax deeds issued to Marathon county were defective, and that the intent to heal these imperfections must be inferred from the passage of the law. We cannot understand upon what grounds such presumption or inference could be made, for it is wholly unwarranted from anything in the act itself. . . „ Won constat that the legislature knew of any imperfections in such tax deeds, or were legislating with reference to them. On the contrary, we must assume that the legislature only had in viexo tax deeds issued to the county which were prima facie sufficient to transfer the title. Without refining upon words, it seems to us the county could not be said to ‘ hold ’ or possess lands by virtue of a tax deed which was absolutely void on its face. Such an instrument would not convey an estate to be held or possessed. We have no idea that the legislature,
Must we hold, upon the record before us, that the legislature did not authorize and did not intend to authorize the county to convey to the state any land whatever, under and in pursuance of ch. 22, Laws of 1867, simply because the county, at the time, had no tax deed valid upon its face, but did hold a tax deed void upon its face upon each forty of the whole 40,540 acres mentioned in the act? The county had for years before been the municipal agency of the state to collect the $20,271.34- state taxes mentioned in the act. Its efforts to collect the same had been unsuccessful, so far as realizing the money was concerned, but it had from year to year assessed property, levied and apportioned the taxes upon the property so assessed, advertised and sold real estate, and obtained and held tax certificates and tax deeds amounting, at what the lands were bid in for and interest, to about $100,000. The tax deeds on all the lands so sold were in one or the other of two forms then used in certain portions of the state, one of which omitted the words “as the fact is,” and the other omitted the state as one of the grantors, and the deeds of each class were void upon their face by reason of such omissions. The state, as principal, ■was pressing the county,' as agent, to make such collection and payment. The county, pleading the poverty and incapacity of its people, offered to turn over to the state in payment a portion of what it had received and had on hand as
Both parties to the contract — the county and the state— seemed to have understood it alike, and apparently carried it out in good faith. The state afterwards frequently ratified the contract so made by legislation, as appears by the several acts above mentioned. Some half dozen different state administrations, and as many different sets of commissioners of school and university lands, construed the contract so made the same way, by selling and giving patents for most of the lands, and releasing some where the assessments or sales had been illegal. It is now claimed that neither the county nor the state understood the meaning of the contract to which they were themselves the parties; that neither the county nor the state knew the contents of the tax deeds, although expressly mentioned in the contract between them; that both the county and the state, or at least the state, had
The words, “ as the said county shall now hold by virtue of tax deeds issued upon sales for delinquent taxes heretofore made,” found in the act, were simply descriptive of the lands contracted for, and to distinguish them as being described in tax deeds taken by the county, instead of being those upon which the county simply held tax certificates, as stated in the memorial to the legislature. There is a sense in which the words “ now hold by virtue of tax deeds ” may refer to tax deeds valid upon their face, and not those void upon their face; but it seems to me .they can only be used in that sense when speaking of the constructive possession of unoccupied lands. I cannot believe that those words were used by the legislature in any such technical sense. On the contrary, it seems to me they were speaking of tax deeds as men generally speak of tax deeds; that is, deeds issued upon the sale of lands for taxes. In fact, sec. 1 of ch. 22, Laws of 1867, does not end with the words last quoted,.but continues, “ tax deeds issued upon sales for delinquent taxes heretofore made; ” and the lands upon which such deeds had been issued in the townships named were to be taken “ without exception.”
As observed, the words employed are used merely by way of description, and to distinguish the lands to be conveyed from those upon which the county held tax certificates merely, and also from those upon which the county might
In Lindsay v. Fay, supra, the tax deed was void upon its face for the same reason as here, and it was there contended by counsel that “ when the statute forbids the maintenance of an action, unless brought within three years from the ‘recording of the tax deed/ it does not mean a void deed. A void deed is as no deed.” In answer to the argument, DixoN, 0. J., said: “The statute imposing the limitation makes no reference to the form of the deed. It does not say a tax deed valid upon its face. For all that appears, it is in entire harmony with the intention of the legislative that the deed should be such, and sueh only, as should create a belief in the mind of the purchaser, a person not shilled in the learning and teolmiealities of the law, that he had acquired
If it is absurd to speak of a county holding lands “ by virtue of tax deeds ” void upon their face, when the assessment and all proceedings back of the deeds were confessedly regular and valid, as here, then, it seems to me, it would be equally absurd to speak of the county holding lands “ by virtue of tax deeds ” valid upon their face when the assessment and all proceedings back of the deeds were irregular and void. Such tax deeds, though valid upon their face, would be mere clouds — mere shadows — which, of themselves merely, would be unable to withstand the first breath of truth. Such tax deeds being merely good prima facie, with no valid assessments nor legal proceedings back of them, would give to the holder no equitable right or claim to the land. On the contrary, tax deeds void upon their face, but with the assessments and ali proceedings back of the deeds regular and valid, would give the county the equitable right, seasonably exercised, to new and perfect tax deeds. With
The memorial to the state, with ch. 22, Laws of 1867, constitute the contract. Sec. 4 of that chapter gave the state authority to hold and dispose of the lands so to be conveyed tp it, in the same manner, and upon the same terms and conditions, as swamp and overflowed lands, at a price named, and then provided that “ no such lands shall be disposed of or sold until the expiration of. one year from the passage of this act, at which time the said conveyance from said county to the state shall be conclusive evidence of an absolute title to said lands in the state, unless suit be instituted to invalidate the same within that time.” This section purports to bar any and all suits brought to invalidate the conveyance from the county to the state after one year from the passage of the act, and to absolutely vest the title in the state under that conveyance after the year. It is said the act does not declare the tax deeds held by the county valid, and that the act nowhere “ by any express words attempts to cure defects in tax deeds.” I do not understand it to be the province of statutes of limitation to specifically cure defects in prior proceedings, but to limit the time within which actions may be brought to-question and litigate such defects, and fix a period after which no such action shall bo
' But it is claimed that the act afforded no opportunity for bringing such suit. It seems to me there was- no difficulty in bringing a suit to invalidate such deed, not only after, but before it was issued. If it was conceived that such proposed deed would be invalid, then I see no difficulty in bringing an action to restrain the county from issuing such deed, and thereby creating a cloud upon real estate. After the delivery
Of course, the county might have issued new tax deeds in the prescribed form, and no one would have had any right to complain. So it would have been competent for the legislature, at the time of enacting ch. 22, Laws of 1867, to have passed an act changing the form of all tax deeds thereafter to be issued as to lands previously sold, as well as to those thereafter sold, so as to dispense with the words “ as the fact is,” and the name of the state as one of the grantors. Lain v. Shepardson, 18 Wis. 59. So there would seem to be no good reason why the legislature could not have limited the time for bringing actions to invalidate the tax deeds void upon their face, or to shorten the time when so limited, provided a reasonable part of the prescribed term still remained after the enactment. Here the deed to the state was made conclusive evidence of an absolute title in the state after one year from the passage of the act, and the time for commencing any action to invalidate such deed was limited to the year so given. The direct effect of thus making the deed from the county to the state conclusive evidence of an absolute title in the state, and to bar all actions commenced after the year to impeach it, was to cure any and all defects in prior proceedings, including the defects in the form of the
If the act is constitutional, and the deed to the state valid and effectual for the purposes indicated, then the deed, being conclusive evidence, is a perpetual bar, to all suits to invalidate it not brought within the year. No suit was commenced for that purpose until more than fourteen years had elapsed. All parties acquiesced, not only in the validity of the act and the deed given by the county to the state under it, but also in its application to the lands covered by the tax deeds and tax certificates turned over and delivered by the county to the state. Yast bodies of lands were, in consequence of the act and the deed given to the state under it, withdrawn from all taxation for many years. Numerous sales have been made, and patents issued by the state upon the lands so conveyed, and large sums of money have been received by the state for such' patents. These things have from time to time been not only recognized, but expressly sanctioned, by legislative enactment.
A subsequent act on the same subject affords complete demonstration of the legislative sense of its own language. Alexander v. Mayor, 5 Cranch, 8. This rule is well established and has frequently received the sanction of this and other courts. Munger v. Lenroot, 32 Wis. 546; Supervisors v. Elders, 45 Wis. 295. In Hunger v. Lenroot, supra, the court was called upon to construe ch. 154, Laws of 1862, but felt controlled by the construction given to ch. 215 of the Laws of 1860 by the legislature of 1869, in passing ch. 144, Laws of 1869. The present chief justice, giving the opinion of the court in that.case, said: “ If I had any seri
But this opinion has already proceeded too far. I have, however, merely sought, without elaboration, to indicate my own convictions in this discharge of a public duty, and thus relieve my self from the i’esponsibility of a decision which will lead, I fear, to serious complications, if not great injustice.
Concurrence Opinion
I concur in the conclusions, and the reasons therefor, reached by Justice Cassoday in his dissenting opinion in this case.
By the Oourt.- — -The judgment of the circuit court is reversed, and the cause is remanded with directions to render judgment for the plaintiffs..
