Hill v. Kricke

| Wis. | Jul 10, 1860

By the Court,

Cole, J.

The circuit court in this case, in effect instructed the jury to find for the respondent. In view of the tax deeds offered in evidence by the appellant, particularly the one dated August 18th, 1845, in connection with proof of possession by him, this ruling was contrary to the decision in Edgerton vs. Bird, 6 Wis., 527" court="Wis." date_filed="1858-07-01" href="https://app.midpage.ai/document/edgerton-v-bird-6597632?utm_source=webapp" opinion_id="6597632">6 Wis., 527. That tax deed was recorded in August, 1845, and it appeared that the appellant had been in the actual and open possession of the premises under that deed and others, since 1848. By section 123, chap. 15, R. S., 1849, an action for the recovery of the lands was completely barred, unless the respondent could show that the taxes had been paid, or the lands had been redeemed according to law. This is the principle of the decision in Edgerton vs. Bird, and is decisive of this case. For we have held at the present term, in Sprecher et al. vs. Wakeley et al., supra 432, that if the time limited by statute for commencing a suit for the recovery of the possession of lands sold for taxes expires, while the statute is in force and before the suit is brought, that the right to bring the same is barred, and no subseqent legislation can renew that right. It was not competent for the legislature to divest the rights which the appellant had acquired in the land by three year’s possession under a recorded tax deed, and chap. 197, Sess. Laws, 1859, cannot apply to this case. Our reasons for this conclusion are stated in Sprecker vs. Wakeley, and need not be repeated here. In the case at bar the appellant did not go into actual possession of the premises until 1848, although the tax deed was put upon record in 1845; and it was contended on the part of the respondent, that the statute of limitations could not commence running until the right of action accrued, and it was assumed that the right of action didnot accrue, or that ejectment could not be maintained, except against a party in the open and notorious possession of the premises claimed. But this is a mistake. By sec. 4 of the act concerning the action of ejectment, Rev. Stat, T. Wis., p. 250, (which act was in force in the territory in 1845,) it was provided, “ If the premises for which the action is brought are actually occupied by any person, such actual occupant shall be named defendant in the declaration, if they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit.” Now, although the grantee under the tax deed, might not have actually occupied the premises, yet by placing that deed upon record, he asserted a title to the premises in the most solemn manner, and we have no doubt but ejectment might have been maintained against him at any moment after the deed was recorded. For certainly, what interpretation can possibly be given to the act of placing the deed upon record, other than that he wished to give notice to all' that he “claimed” “title” to the premises embraced within the deed ? He would not be permitted to say after this that he was not asserting title, or some interest in the land, and was not within the very words of the statute. Bauyer et al. vs. Empie, 5 Hill, 48, and cases there cited. It will be borne in mind that the three years limitation of actions brought to recover lands forfeited for taxes, has been in force since 1840. Sess. Laws, 1840, 40 ; and Laws of 1844, 22, § 12.

We do not deem it necessary to determine the other questions raised upon the argument.

The judgment of the circuit court is reversed, and a new trial ordered.