26 Wis. 614 | Wis. | 1870
There was no error in admitting the deed from Patrick McKenna to Thomas McKenna in evidence, even though the certificate of acknowledgment was defective in not indicating the county in which the justice of the peace, before whom it was taken, belonged. This is not a case where the title depends upon a valid record of the deed. And it has been held by this court that under the same statute in force when this deed was executed, the title would pass as between the parties,, by a deed otherwise sufficient, even though not executed in such manner as to entitle it to be recorded. Myrick v. McMillan, 13 Wis. 188.
It was proper also to admit the proof that McGraw, Sen., while acting as the agent in respect to this land, had cut and sold wood and timber from it, and received the proceeds. This was not done for the purpose of recovering the amount in this action, and there was no such recovery. The brief of the appellants’ counsel concedes that the proof was admitted only to show that the agent had money in his hands, which he ought to have applied to the payment of the taxes as they became due. It was precisely for this purpose that the proof was material and proper. It tended to show that the agent, in neglecting to apply these funds to the payment of the taxes, in allowing the land to
The only remaining exceptions depend entirely upon the question whether the rights of the plaintiff were subject to the three years’ statute of limitations, applicable to actions brought to recover lands sold for taxes. If they were, there was perhaps error in the case. The first instruction asked by the plaintiff and given by the court, would have been objectionable, as requiring the defendants to have been in possession under the tax deed for three years after it was recorded, in order to establish the bar; whereas, the deed being valid on its face, and the land not in the actual possession of the original owner, in accordance with the decision of this court, the tax deed would have drawn after it the constructive possession, and after the expiration of three years the original owner would have- been barred.
So also it may be that if the case was governed by this statute at all, some of the instructions asked by the defendants should have been given. But we are
In such cases the statute does not begin to run until the fraud is discovered. And for this purpose there is no constructive discovery. If an agent should fraudulently allow the lands of his principal to be sold for taxes, and take the deed himself and put it on record, this would not be notice to the principal that would set running the statute that would bar' him from an action for relief against the fraud. The three years’ statute of limitations as to lands sold for taxes, applicable to persons in general as to whom no fiduciary
Within that time the plaintiff might, if necessary, have brought an equitable action for relief against the fraud by compelling a conveyance of the title acquired under the tax deed or otherwise. And within the same time she might, as was done in this case, estop the defendant from setting up the tax title so acquired as against her in an action to recover the possession. This view of the question what statute of limitations was applicable, shows that the inaccuracy in the instruction given was immaterial, and that the instructions asked by the defendant upon this point were properly refused.
The question of fraud was fairly submitted to the jury upon instructions the correctness of which does, not seem to be controverted. Certainly it would not be claimed that an agent in respect to lands could, without notice to his principal, allow the lands to be sold for taxes, and acquire a title under the tax deed which he could successfully assert against the principal.
That the relation once existed here was undisputed. And although the principal may have been in default in remitting the necessary funds, as was claimed for the defendants, that fact did not put an end to the relation, or place the agent in a position where he could acquire and assert a tax title against her. To do that, he should have first distinctly notified her of the dissolution of the relation of principal and agent.
By the Court. — The judgment is affirmed.