Lybrand v. Haney, 31 Wis. 230

Lybrand v. Haney

31 Wis. 230 | Wis. | 1872

LyoN, J.

I. All of tbe lands affected by this action are included in tbe tax deeds designated as A, I, and K; and tbey were all executed and recorded more than three years before this action was commenced. So far as tbe action is founded upon those three deeds, it cannot be maintained. The act of 1859, chap. 22, sec. 35, only permits such an action to be brought within three years after the date of the conveyance.

II. It is quite probable that the purchase by the plaintiff of the certificates issued on the sales for the unpaid taxes of 1865, is a redemption of the land from such sales, the plaintiff having been in possession claiming title when those taxes were assessed or levied. If a redemption, the plaintiff cannot predicate his action upon the tax deeds G- and H.

III. But as to the remaining deeds, B, C, D, E, E, executed on the sales for the unpaid' taxes for the years 1859, ’60, ’62, ’63 and ’64 respectively, the plaintiff occupies a different position. He was under no legal obligation to pay taxes assessed upon the lands before he became the owner thereof, or before he went into possession claiming to be such owner. He could pay such taxes or abstain from doing so, as he pleased. Hence the taking of tax deeds upon the certificates issued on the sales for nonpayment of the taxes for the last mentioned years, instead of paying such taxes, was no violation of any duty or obligation. Under these circumstances, we see no good reason why the plaintiff could not strengthen his title by taking such deeds, or why he may not maintain this action upon them, notwithstanding he may have a good title without them by virtue of the deeds A, I, and K. Such, I think,, is the result of the reasoning of the chief justice in Smith v. Lewis, 20 Wis., 350; with which I am entirely satisfied.

IY. Several objections are taken to the form of the tax deeds, and they do differ in certain particulars from the form prescribed by law. 1. They recite that the plaintiff, or other holder of the certificates of sale, has deposited the same “ in the office of the clerk of the board of supervisors in the county *234of Eicbland,” instead of “ in tbe office of tbe clerk of tbe county board of supervisors of tbe county of Eicbland,” which, is tbe statute form. 2. In tbe attestation, tbe word “ and,” where it occurs immediately preceding tbe words “ have hereunto subscribed,” etc., is omitted. These are very stupid blunders, or would be so, were it not true that it was easier to avoid than to commit them. Perhaps tbe effort that it cost tbe perpetrator and others to commit them in tbe first instance, and to perpetuate them through all of these deeds, ought to relieve those persons from tbe charge of stupidity. They are blunders, however, which can prejudice or mislead no one. No person can be deceived by them. They do not effect the substance of the deeds, and the statute only requires that they shall be substantially in the form therein given, or oilier equivalent form. Laws of 1859, chap. 22, sec. 50. We think the deeds in question are substantially in the form therein prescribed, or equivalent thereto.

Y. The point was made on the argument of this cause, that the complaint does not allege that the defendants were the owners of the lands in question at the time of the tax sales. The law of 1859, sec. 36, requires that all persons who were the former owners of the lands, or those claiming under them, or claiming any interest therein, shall be made defendants in the action. The averment of the complaint is as follows: “ That the defendant James Haney is the former owner of all the foregoing described lands and real estate, and the defendant Santippa Ann Haney is the wife of the said James Haney; and the defendants claim the right to have the possession of all the foregoing described lands.” We think that this is a full compliance with the law in that respect.

By the Court. — The order of the circuit court, overruling the demurrer to the complaint, is affirmed.