McConnell v. Hughes

83 Wis. 25 | Wis. | 1892

Cassoday, J.

It is true, as contended by counsel for defendants, that a party cannot maintain ah action to rescind a contract in part, oh the ground of fraud, and at the same time affirm the residue Under which he has taken a benefit. Hendricks v. Goodrich, 15 Wis. 679; Grant v. Law, 29 Wis. 99; Zitske v. Goldberg, 38 Wis. 223; Hyslip v. French, 52 Wis. 516; Hoffman v. King, 70 Wis. 381. This, however, is not such an action, although the brief of the plaintiff’s counsel seems to so designate it. From a careful examination of the complaint we are convinced that it is ah action for damages by reason of the frauds alleged.

In granting the nonsuit the trial judge, among ether things, in effect said that there was plenty of evidence tending to prove that McConnell Was induced to make the purchase and pay his money by false representations knowingly made by Mr. Hughes; that it appeared Upon the trial that the tax deed was “ utterly void, not only for the reason that there were minor heirs, but for the further reason that the same was made in a manner entirely illegal, and almost scandalously So, in defiance of all rules concerning those things.” There Is evidence tending to prove that the representations so made by Hughes to induce McConnell to make the purchase were to the effect that the title of Mrs. Hughes from the county was perfectly good; that her right and title to the land was all straight; that the tax sale from the county, upon which the tax deed issued, was good; that the original owner, Suitor, left no iminor heirs him surviving, nor any claimants that would interfere with his title.

The court appears to have granted the nonsiit on the ground that the tax deed was utterly void for two reasons, dehors such representations; and hence that McConnell never would have acquired a good title under it, even had such minor heirs never redeemed, as mentioned in the foré-going statement. One of such reasons is that the publication of the notice of sale required by sec. 1130, R. S., and the notice to redeem required by sec. 1170, R. S., mentioned in said statement, were both short. The tax deed appears to have been valid upon its face, and hence, upon being recorded, it put the constructive possession of the land in Mrs. Hughes, and the plaintiff as her grantee. Such short notices were not errors or defects “ going to the validity of the assessment, and affecting the groundwork of the tax,” so as to bring those claiming under the original owner within the one year statute of limitations. Sec. 3, ch. 309, Laws of 1880; sec. 1210h, S. & B. Ann. Stats.; Urquhart v. Wescott, 65 Wis. 135; Morrow v. Lander, 77 Wis. 77. That tax deed was recorded May 24, 1884, and the action to set aside the same by those claiming under the original owner was not commenced until after November 3, 1887, which was considerably more than three years after the tax deed was so recorded. The statute then in force, as now, expressly provides that “no action shall be maintained by the former owner, or any person claiming under him, to recover the possession of any land or any interest therein which shall have been conveyed by deed for the nonpayment of taxes, or to avoid such deed, against any person claiming under such deed, unless such action shall be brought within three years next after the recording of such deed.” Sec. 2, ch. 309, Laws of 1880; sec. 1188, S. & B. Ann. Stats. After the statute of limitation has thus run in favor of a tax deed, evidence of mere irregularities in levying the taxes, making the sales, or issuing the tax deed, is inadmissible to support the title of the original owner or any one claiming under him; since all such defects are cured by such statutes. Dupen v. Wetherby, 79 Wis. 203. But such statute of limitation did not run against the minor heirs at law of the original owner, for the reason that they are expressly excepted from the operation of such statute. The redemption by the minor heirs, May 18,1885, under sec. 1166, R. S., as mentioned in the foregoing statement, operated to free and discharge the land from the tax deed, at least so far as their rights, title, and interests therein were concerned.

The other reason suggested by the trial judge for holding such tax deed utterly void, dehors such false representations, is the breach of trust by Moffat as attorney for the guardian of said minors, and the collusion between him and the defendants and the county treasurer, whereby the tax deed was for the entire quarter section, instead of being for the small fraction which was sold as mentioned in' said statement. But such breach of trust and collusion certainly cannot be made available as a defense to the fraud alleged, and which there is evidence tending to prove.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.