Hughes v. Libby

41 Wis. 469 | Wis. | 1877

Cole, J.

It is stated in the brief of counsel on both sides, that this action was commenced on the 6th day of July, 1874; and the circuit court finds as a fact that it was commenced at that time. The original papers seem to have been sent up on the appeal, and, upon referring to them, it will he seen that the complaint was verified on the 16th day of June, 1873, and the answer was verified on the 25th of the next month. It does not appear when the summons and complaint were served; but we must assume that they were served, and the action commenced, some time before the answer was verified. It is unreasonable to suppose there was a mistake in the dates of these jurats, or that they were dated hack a year. That idea is not to he entertained for a moment. ~We therefore must hold these dates conclusive upon the question as to when the action was commenced; controlling both the finding of the court and the statement of counsel. The mistake upon the point was doubtless fallen into because the original papers were not consulted.

If the action was commenced — as upon the record we must assume it was — before the 25 th day of July, 1873, the three-years limitation had not run in favor of the plaintiff’s tax deed. That deed was recorded on the 16th day of May, 1871, and could be impeached for irregularity in the tax proceedings. It appears from the bill of exceptions, that the defendant offered in evidence the records from the office of the county clerk for the purpose of proving that the proceedings prior to the issue of the plaintiff’s tax deed of May 16, 1871, were irregular and invalid, which evidence was objected to on the ground that the three-years limitation had run in favor of that deed. The objection was overruled. In view of this ruling, for the purpose of dispensing with formal proof, the plaintiff admitted that irregularities existed in the tax proceedings prior to the issuing of his deed sufficient to invalidate the same but for the bar of the statute. As already observed, the statute had not run in favor of that deed when the action was commenced, and the admission of the plaintiff' was fatal to his case. He had to recover on the strength of his own title, and not on the weakness of the title of his adversary. This principle is elementary. This relieves us from the necessity of considering the interesting question, so ably discussed by counsel, arising upon the counterclaim, and as to what effect, if any, must be given to the record of defendant’s tax deed recorded August 4, 1871, upon the constructive possession claimed to follow the record of plaintiff’s deed. Roth deeds, though good on their face, were shown to be invalid on account of irregularities in the tax proceedings prior to tlieir issue. They stood upon the same ground, and were equally liable to be impeached.

It follows from these views that the judgment of the circuit court must be affirmed.

By the Court.— Judgment affirmed.