60 Wis. 175 | Wis. | 1884
It is not denied in the answer that the plaintiffs are t,he owners of the land in controversy, unless their title was divested by the tax deed. It appeared on the trial that the ■certificate of sale, which is the basis of the tax deed, was assigned by the county to which it was issued, to the town of Liberty Grove, and if the defendant ever had any interest in it, he obtained such interest by an assignment from that town. That the town could not lawfully receive or make such an assignment; that the interest of the county, by virtue of the certificate in the land described therein, has never been divested; and that the tax deed is void as against the plaintiffs — the original owners of the land,— is the settled law of this state. Eaton v. Supervisors, 44 Wis., 489; Dreutzer v. Smith, 56 Wis., 292; Jackson v. Town of Jacksonport, 56 Wis., 310.
Undoubtedly the learned circuit judge held that the plaintiffs were precluded from asserting the invalidity of the tax deed because they failed to bring their action to recover the land within nine months after the recording thereof. Hence the direction to the jury to find.for the defendant after the invalidity of the tax deed had been conclusively established. If the defense of- the statute of limitations interposed in the answer goes to the deed, the ruling is correct. But if it goes only to the certificate of sale on which the deed was issued, and not to the deed itself, the ruling cannot be sustained. We must determine, therefore, how broadly the statute of limitations is pleaded.
We think it very clear that the defense of the statute of limitations contained in the answer is confined to the certificate of sale. That is to say, both in substance and form it
If the defendant desired to invoke the protection of the' nine months’ limitation in favor of his tax deed, it would have been easy to say in his answer that such deed was recorded more than nine months before the action was commenced, and that he relied upon the statute in that behalf to protect it from attack. lie failed to do so; but instead thereof sets out with great particularity and accuracy the-facts which, under sec. 1210e, would bar an action brought to set aside the tax sale; to cancel the tax certificate; to restrain or prevent the issuing of a certificate or tax deed; or' to cancel a tax deed; and invokes the protection of that statute alone to shield his tax deed from attack. The statute thus pleaded does not reach the case, and thus the tax deed is left subject to impeachment for defects and irregularities in the tax proceedings prior to its execution, and in its execution; certainly for those occurring after the certificate was issued.
The tax deed having been successfully impeached by the-plaintiff on the trial, the court should have directed a verdict for the plaintiffs instead of the defendant.
As the foregoing views are conclusive of the case, it is unnecessary to consider any other question, although several other alleged errors are assigned.
By the Court.— Judgment reversed, and cause remanded for a new trial.