25 Wis. 672 | Wis. | 1870
It was error to reject the tax deed issued upon the sale of 1854 for'the taxes of 1853. That deed was excluded for the reason, as alleged, that it was void on its face. The court so ruled because it appeared on the face of the deed that the lots conveyed, three in 'number, were sold in gross for a gross sum. This was a mistake. It appears on the face of the deed that the lots were separately sold. The deed expressly so recites, though it does not show the sum for which each lot was sold, but only the gross sum for which all were sold. The language in this respect is perhaps a little ambiguous, but still there can be not much doubt as to its meaning. We understand the sum of $17.38, named in the deed, to have been the gross sum for which all the
We think it was also error for the court to instruct the jury that the deed upon the sale of April 8, 1856, for the taxes of 1855, was out of the case under the statute of limitations, which requires the action to be commenced within three years next after the recording of the tax deed. That deed was executed and recorded November 6, 1861, and more than three years before the commencement of this suit. The difficulty with- the instruction is, that the objection was not taken by answer. The statute provides, that the objection that the action was not commenced within the time limited can only be taken by answer. R. S., ch. 138, § 1. It is • true, it has been held that a demurrer is an answer, within the meaning of the statute, where the facts showing the bar appear on the face of the complaint. Howell v. Howell, 15 Wis. 55. And it has also been held to be sufficient if the facts showing the defendant to be within the protection of the statute are specifically stated in the answer. Whitney v. Marshall, 17 Wis. 174. But here the answer is a mere general denial of the allegations of
As to the other objections and exceptions taken and
The decision and instructions of the court, holding that the deeds for the taxes of 1851 and 1852 were invalid,, because the parts of the lots owned and occupied by the defendants were assessed, not separately against them, but together with the residue of the lots Owned by others and as a single assessment, were clearly correct. It has frequently been so held by this court. The State ex rel. Roe v. Williston, 20 Wis. 228; Crane v. Janesville, id. 305 ; Hamilton v. Fond du Lac, ante, p. 490. And the deeds for those years being but prima faeie evidence of the regularity of the previous proceedings, this objection was op(en to the defendants.
Nor was there any error in admitting evidence to show payment of the taxes for those and the subsequent years. The parts of lots in dispute, and to which the plaintiff claims title by virtue of the tax deeds, were parcel of the paper-mill property owned and occupied by the defendants. The receipts show payment in full of taxes upon property designated in them as “paper-mill,” “where the paper-mill is situated,” etc.; though the premises are also designated as lots, but not accurately so. In some they are described as “lot 3, block 1, village of Hum-bolt;” in others, “lot 4 and part of lot 5 in Humbolt,” without naming the block. In none of them are the parts of lots 2 and 4, block 1, here in controversy, specified. If the taxes on these parts of lots were paid, and the receipts are to be applied to them, it must be under the general designation of “paper-mill,”'or property “where paper-mill is situated,” as found ih the receipts. The court below submitted to the jury, as a question of fact, whether the taxes, were so paid. This, we think, was correct. The receipts, with the parol testimony, certainly constituted sufficient evidence to go to the jury, upon the question of payment. It being shown - that the parts of lots in question were parcel of the mill property,
These observations, we believe, sufficiently dispose of all material questions arising in the case; from which it follows that the judgment below must be reversed, and a venire de novo awarded.
By the Qourt. — So ordered.