153 Wis. 1 | Wis. | 1913
In this suit to quiet title as against one tax deed recorded on June 15, 1900, one recorded on August 15, 1901, one recorded on August 21, 1901, and one recorded on December 19, 1902, all in the register’s office of the proper county and all of which are conceded on the argument to have been vulnerable to attack and void unless protected by the statute of limitations, the learned circuit court rendered judgment for the defendant, resting said judgment upon a conclusion of law that the original or patent title to said lands had never been acquired by the plaintiff. This conclusion of law was thought to follow from the following facts, namely: (2) one Samuel L. Prentiss became the owner of the patent title in 1891; (3) June 14, 1900, a tax deed on said land was issued to D. J. Kinne; (4) December 1, 1900, D. J. Kinne commenced an action in the circuit court for the proper county to foreclose said tax deed, and on September 20, 1901, judgment in said action was rendered in favor of said D. J. Kinne, the tax-title holder, and against Samuel L. Prentiss, decreeing that the former was the owner in fee simple of the lands in question and that the latter and his wife and Ash-land county and all persons claiming under them, or any or either of them, after the filing of the notice of pendency of the action, were barred and foreclosed of all right, title, interest, and claim in and to the lands in question; (5) on October 11, 1901, Prentiss and wife made and executed a quitclaim deed of said lands to the plaintiff; (6) on December 23, 1901, on the application of Samuel L. Prentiss, the said judgment was set aside and Prentiss and wife permitted to answer; (I) on September 21, 1903, the action mentioned was discontinued by the plaintiff therein; (8) the lands are vacant and unoccupied.
A quitclaim deed in this state is equivalent, at least for the purpose of conveying the title of the grantor, to a deed of bargain and sale. Sec. 2207, Stats. . The interest which Samuel L. Prentiss had in the land in suit was the full legal title in case the tax deed was invalid, but nothing if the tax deed was valid. After the default judgment was entered against him in the tax-deed foreclosure, this interest continued so long as he had a right to vacate that judgment, answer, and defeat the tax deed or be defeated thereby. After the entry of judgment this interest, it is true, was subject to the further burden of showing good cause in order to entitle him to answer and contest the case. The order allowing him to come in and defend is not subject to collateral attack in this suit and is conclusive that he had such good cause. The evidence, with the concession of respondents’ counsel, is conclusive that at that time, before any statute of limitations had barred attack upon the tax deed, this deed was invalid. So we have the case of the owner of the patent title to land clouded by an apparently valid but really invalid outstanding tax deed who conveys the land by quitclaim deed. After he conveyed the land by quitclaim deed he made application to the court to be allowed to appear and answer in the tax-deed foreclosure suit. The court could well have permitted this had the fact of conveyance to the plaintiff been disclosed, for we have a statute providing:
“In case of a transfer of interest or devolution of liability the action may be continued by or against the original party, or the court may direct the person to whom the interest is transferred or upon whom the liability is devolved to be substituted in the action or joined with the original party, as the case requires.” Sec. 2801.
2. The instant case was begun before any statutes of limitations had barred an attack upon any of the tax deeds unless it be the first one. As to that tax deed, more than three years had elapsed from the date of recording when this suit was begun. But during the greater part of that time the said action for foreclosure was at issue and pending, and, as we have seen, that action was discontinued by the plaintiff, the tax-title claimant. This brings that tax deed within the purview of sec. 4250', Stats., which provides that under such circumstances the time that intervened between the commencement and termination of such action shall not be deemed a
By the Court. — Judgment reversed, with costs, and the cause remanded with directions to enter judgment for the plaintiff subject to the provisions of sec. 12107i, Stats., and for that purpose to take such evidence as may be necessary.