61 Wis. 407 | Wis. | 1884
We have just held that a trial court may, in the exercise of a sound discretion under all the circumstances of a given case, allow an amendment to a pleading setting up the statute of limitations. Smith v. Dragert, ante, p. 222. Where', upon a proper application, such powrnr has been exercised, this court only determines whether there has been an abuse of such discretion. Ibid. True, as urged, the time for answering had long expired, and the failure to set up the statute of limitations in the original answer was, for the time being, a waiver of the right given by the statute; but the court, nevertheless, had power in its discretion, on motion, and for good cause shown, and upon such terms as were just, to allow such amendment after the time limited had expired. Sec. 2831, R. S.; Woodruff v. Depere, 60 Wis. 128. So the court, at any stage of the action, in furtherance of justice, and upon such terms as were just, was empowered to allow the answer to be thus amended. Sec. 2830, R. S.; Smith v. Dragert, supra.
What wiil be in “furtherance of justice,” and what “terms” are to be regarded as “just,” must depend upon the facts of each particular case. Orton v. Noonan, 25 Wis. 676; Capron v. Supervisors, 43 Wis. 617. But it must be remembered, that a far more stringent rule obtains where an answer is sought to be amended by setting up the plea of usury, or the statute of limitations in favor of a tax title claimant, in a suit between private persons, than in other
Such being the established rules of law, the obvious duty of a trial court, sitting as a court of conscience, in the exercise of a sound discretion upon such application, is to do or secure substantial justice to the parties under all the circumstances, regard being had to the original ownership, the nature of the respective tenures asserted, whether the favor is asked by a private party or a municipality, the character of the intervening possession, whether the value has been increased by improvements or diminished by cutting timber or other wraste, the state of the litigation, the amount of costs that have been incurred, whether the allowance of such amendment would work a continuance, and any other fact going to the equity of such allowance. Here there seems to have been a substantial disregard of these salutary consid
The plaintiffs claim that they contracted for a good, sure, perfect, and absolute title in fee simple to the lands in 1870 or 1871; paid the full value thereof; had possessed and used the lands ever since as their own property, and claimed title by virtue of a warranty deed given in 1872, in pursuance of such contract, by persons whom the plaintiffs understood and verily believed at the time to be seized in fee simple of the lands under a regular chain of title from the United States. The defendant D. 8. Bishop claims that the title acquired by the plaintiffs was derived from two tax deeds issued in 1869, and from no other source. If such were the fact, still the question would recur whether the original title was terminated and extinguished by such tax deeds. If it was, and the title became conclusively fixed in the plaintiffs, then we see no reason why the plaintiffs should not, as against one claiming under a subsequent tax deed, be regarded as the original owner. But the defendant I). 8. Bishop claims to be more than a mere tax title claimant. He avers in his affidavit “ that he is the owner of the original title to said lands, derived from and under a patent therefor from the United States.” But he fails to aver when he obtained such original title, or from whom, or what he paid for it. If he obtained it, or rather a deed purporting to convey it, after it had been extinguished, from one who
We have referred to these things merely as bearing upon the equities, which are not very fully disclosed by either party. Just what conditions should in the furtherance of justice be imposed in a given case must always rest in the sound discretion of the trial court in the first instance. In reviewing the exercise of such discretionary power this court is confined to its abuse. Smith v. Dragert, ante, p. 222.
Counsel for the plaintiffs claimed, on the oral argument, that the proposed amended answer failed to plead any statute of limitation applicable to the case. The answer does not attempt to plead any statute of limitation as to the tax deed, and in fact could not successfully, as it appears from the record that it was recorded August 2, 1880, being less than nine months prior to April 23, 1881, when the action was commenced. The amendment was manifestly interposed to protect the tax certificates against irregularities occurring on or prior to their date. The answer does not refer to any particular statute of limitation, and the learned counsel for the defendant refers to none in his brief. We have been somewhat at a loss to know just what particular statute he does intend to rely upon. The reference to a one-year statute of limitation in the answer probably was intended to refer to sec. 3, ch. 309, Laws of 1880. But we do not understand that that section is applicable to these certificates. True, the answer alleges that more than three years had elapsed since the date of the tax certificates, but we are not aware of any three-years statute applying to tax certificates. The only statute protecting tax certificates against prior irregularities, applicable to this case, that we are aware of, is sec. 1210<?, E. S. Being the only statute
As the order must be reversed by reason of the abuse of discretion, and the case sent back for further proceedings, we have felt called upon to make the above references to the proposed answer.
By the Court. — ■ The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.
