56 Wis. 284 | Wis. | 1882
This is an action of ejectment, and the defendant D. 8. Bishop, in his answer, denied the plaintiffs’ title, and alleged title in fee in himself, and admitted possession, and his wife, who is' made defendant, disclaimed. The plaintiffs having proved title, the defendant D. 8. Bishop introduced in evidence, against the objection of the plaintiffs, a tax deed from the county of Shawano to one C. S. Wes-cott, and also a deed from said Wescott to himself of the premises in question. The. .plaintiffs’ objection to the introduction of the tax deed need not be noticed at this time, because, as we view the case, there was afterwards an error in the ruling of the circuit court which prevented a full trial of the cause, and which will render a new trial necessary. After the tax deed was received in evidence, the plaintiffs offered to show certain irregularities and defects in the antecedent tax proceedings which rendered it void, and the
As to the first question, the learned counsel of the respondents says in his brief: “We could not answer that the statute of limitations had run against the plaintiffs’ cause of action, because such was not the fact,” and yet the learned counsel would insist that the statute had run so as to protect the defendant’s tax deed. This apparent contradiction seems to have arisen from a misunderstanding of the case cited of Mead v. Nelson, 52 Wis., 402. In that case the defendant answered by setting up his tax deed, and pleading this statute of limitations, although for brevity it is stated in the printed case, and in the statement of facts accompanying the opinion, that the statute of limitations had run against the plaintiff’s cause of action. The statute had run against the plaintiff’s cause of action, because it had run in favor
As to the second question, whatever may have been the rule of pleading, when the defendant in ejectment set up title in himself by a tax deed, as to the necessity of a replication by the plaintiff of facts rendering such deed void, before the code, no such replication is now necessary or proper. It is therefore now a necessity that the plaintiff should be allowed, upon the introduction of the tax deed, to show any facts affecting its validity, or which would render it unavailable to the defendant, as title, without pleading them. McMahon v. McGraw, 26 Wis., 614, and authorities there cited; Kent v. Agard, 24 Wis., 378; Nielson v. Schuckman, 53 Wis., 638.
In this case the defendant has not even pleaded his tax title to notify the plaintiffs of such a defense, and, according to' the practice, even before the code, the plaintiffs would have been allowed to attack any deed he might introduce to show
By the Court.— The judgment of the circuit court is re-A'ersed, and the cause remanded for a new trial.