Lain v. Shepardson, 23 Wis. 224

Lain v. Shepardson

23 Wis. 224 | Wis. | 1868

Paute, J.

We cannot consider the question whether the verdict was against the evidence, which was argued and relied *228on by tbe counsel for the appellant, for the reason that there is no statement in the bill of exceptions that it contains all the evidence.

Neither was there any error in admitting evidence of the payment of the tax, on the sale for which the plaintiff’s title was based, without having pleaded such payment in the answer. The complaint in an action to recover real estate is general. It does not set forth tbe plaintiff’s title, but simply alleges ownership and a right to the possession. Under this he is allowed to show any title that he can. And from the necessity of the case, the defendant, under a mere denial, must be allowed to prove any thing tending to defeat the title which the plaintiff attempts to establish. He cannot be bound to allege specific objections to a title which the complaint does not disclose, and which he may have no knowledge of until it is revealed by the evidence on the trial. The fact that in this case, by-reason of a former trial, the defendant had acquired knowledge of the title relied on by the plaintiff, and had, by an amended answer, set forth specifically some objections to it, can make no difference in the rule. The rule must be general, and the same in all cases.

But there was error committed on the trial in allowing immaterial evidence to go before the jury. The evidence consisted of the record of the former suit between these parties in regard to the same land, and the deed from plaintiff to Davis of a portion of the premises. The latter was a quitclaim deed. The only title the plaintiff had at that time was under his first tax deed, which was afterward held void by this eoprt for a defect on its face. It has also been decided by this court, that a party owning a tax certificate on which he has taken out such a defective deed, has a right to a new deed, and this, although he has given a quitclaim deed of the premises. State v. Winn, 19 Wis. 304. It follows, therefore, that if Davis acquired any rights in this land or in the certificate by virtue of his quit*229claim deed, those rights could only be of art equitable nature, and they would not prevent the plaintiff from acquiring the complete legal title under the new deed which he subsequently took out, and on which he relies in this suit. The evidence of the deed to Davis, and the record of the former suit, were wholly immaterial. They had no bearing whatever upon the question whether the plaintiff had title under his last deed. A judgment will not necessarily be reversed because immaterial evidence has been introduced. It must be not only immaterial, but of such a character as to make it probable that it might prejudice the jury. This was of such a character. Juries do not ordinarily look with great favor upon tax titles. And it is impossible to say that the minds of an ordinary jury would not be prejudiced against the plaintiff, by proof that he was seeking to recover the whole land, after he had conveyed away a part of it, and that he had already brought one suit for the same land on a deed for the same tax sale, which had been declared void. This evidence being, therefore, immaterial, and of such a character that it might naturally prejudice the jury against the plaintiff’s claim, the judgment ought to be reversed.

There is, perhaps, another question that ought to be passed on. That is, the claim by the respondent’s counsel that the action is barred. It is not claimed that there is any statute which in terms reaches the case and establishes a limitation. But counsel seeks to derive from general principles the same limitation which the legislature has since enacted in chap. 112, Laws of 1867. He claims that the party entitled to a tax deed ought not to be allowed to extend his remedy indefinitely, by delaying to take out his deed, and then insisting on a right of action upon it at any time within three years after he saw fit to record it. There may be great force in this view. But it will hardly warrant the counsel’s conclusion that the party would be barred at the end of six years from the sale. On the contrary, a *230position formerly taken by other counsel in the argument of a case before this court seems more reasonable and in harmony with the statute. That was, that the right of a party, under a tax-certificate, to a deed, gave him an equitable interest in the land, and that after the expiration of ten years from the time when he was entitled to his deed, he would be barred by the ten years’ limitation upon equitable causes of action, if he neglected to take out his deed and bring his action within that time. It was urged that he could not use the privilege given by the other provision, to bring an action at any time within three years after recording his deed, to extend his remedy indefinitely beyond the limitation established by the general statutes; and that that provision should be construed as evidently designed only to establish a still shorter limitation where the deed was taken out and recorded before the general statutes would create a bar, but not at all to prevent them from being applicable, if the party delayed long enough to bring his case within their terms. There seemed to us great force in this reasoning; but we did not have occasion to decide the question, and of course we shall not - decide it now. We shall only decide that there was no bar prior to the expiration of the ten years from the time when the plaintiff was entitled to his deed, which had not elapsed- when this action was brought. And as it was brought within three years after recording his second deed, there is no statute creating any bar, and the court cannot create one without a statute.

By the Court. — The judgment is reversed, with costs, and the cause remanded for a new trial.