By the Cov/rt,
Ejectment for a tract of land in the county of Dane. The defendant claims title under a tax deed, and the sufficiency of thаt title is the only question. The land was sold in April, 1853. The deed issued May 26th, and was recorded May 30th, 1856. It was admitted, on the trial, that the defendant had been in possession and was so still, and that he had made valuable improvements on the land. How long he had been in possession does not appear. The case was argued in connection with Smith vs. Cleveland, already decided, and as if it presented the same questions. But we do not think it does. The bill of exceptions is not so framed as to present the questions upon which that case turned, if they were in fact involved. The record recites that “ the plaintiff, to maintain the issue on her part, offered in evidence certain records from the office of the clerk of the board of supervisоrs, and also from the office of the county treasurer, in order to impeach the legality and validity of the said tax of 1853, "and the proceedings upon which said land was sold for taxes; to which the defendant, by his attorneys,
This is all that the bill of exceptions contains as to the evidence, and it is manifest that we cannot pass uрon the nature or effect of it. We have no information upon the subject. The records introduced may have shown thаt the taxes were paid, or the lands redeemed. The treasurer and clerk were required to keep a recоrd of such facts, if they existed ; and at all events we cannot determine the sufficiency or admissibility of evidence until we know what it is.
Besides, the time of the sale is not shown. The answer avers it to have been on or 'about the 12th of April, 1853, but when it was proved tо have been made we are not informed. The act of April, 1852, was repealed in several important particulаrs by the act of March 31st, 1853, as will, upon examination, be seen. It appears from the schedule of dates appеnded to the laws of 1853, that the latter act was published on the 18th day of April of that year. It becomes very material, therеfore, to know whether the sale took place before or after that date.
But the other question, likewise argued in Smith v. Cleveland, though not decided, is fairly presented by the record, and must be determined. It seems to have been the only question made and discussed in the court below. It is, whether the limitation prescribed by the fifth section of the act of April 2, 1861, can be applied to this action. Laws of 1861, chaр. 138. At the time the tax deed was executed and recorded, the period of limitation was fixed at three years frbm the reсording. R. S., 1849, ch. 15, sec. 123. This period was continued by the statutes of 1858. R. S., ch. 18, sec. 158. Also by the act of
The power of the legislature to extеnd the period of limitation as to all causes of action not yet barred, is not denied. It may do so at pleasure. But its рower by retroactive laws to cut off the remedy or bar the action upon an existing cause, instanter, or without giving a reasоnable time to prosecute, is denied. Both these propositions are old and well settled. At the time of the passаge and publication of the act of March 19, 1859, the remedy of the plaintiff was still open. The bar of the previous statute, had the same remained in force, would not have attached until the 30th day of May following. The effect of section 2 оf the act of March 19, was, therefore, to continue the remedy until the expiration of three years from the time of its рassage, or to the 19th of March, 1862. For although this section has been held inoperative as to causes of actiоn then already barred, we suppose there can be no doubt of its validity as to those which were not so. It was good as to all cases within the reach of legislative action. But before the expiration of this extended time, namely, on the 14th of February,
Then came the act of April 2, 1861, the language of which has been repeated. It declares that the action shall he commenced within thrеe years next after the recording of the deed. At that time it was three — nearly five — years since the recording of the defendant’s deed. Hence this act cannot be applied. The effect would be not only the instantaneous destructiоn of the plaintiff’s remedjr, but, if a thing so impossible can be supposed, the destruction of it nearly two years before the enactment of the statute.
Judgment -affirmed.