Vicker v. Byrne

155 Wis. 281 | Wis. | 1914

The following opinion was filed October 7, 1913:

TimliN, J.

• 1. There is no necessary conflict between secs. 1175 and 1200, Stats. The former forbids the issue of a tax deed except after written notice has been served on tlie owner or occupant in any case where the land shall have been in the actual occupancy or possession of any person other than the owner and holder of the certificate of such tax sale or some person claiming under him, for the period of thirty days or more, at any time within the six months immediately preceding the time when the tax deed upon such sale shall be applied for. Tax deeds issued contrary to this interdict are of course void. Sec. 1200 relates to defenses against tax deeds which may be made without tender of the taxes due, interest, subsequent taxes, etc. The right to attack a tax deed without such tender for lack of the notice required by sec. 1175 is there limited to cases in which “lands described in the complaint or some part thereof were in the .actual occupancy or possession of the defendant, his agent or tenant, or of some other person through whom he claims title for the period of thirty days or more at some time within six months immediately preceding the expiration of redemption or the six months immediately preceding the time when the deed or deeds mentioned in the complaint were taken.”

What is meant by the words “immediately preceding the •expiration of redemption” is somewhat uncertain. Sec. 1165. But it is not necessary to construe this clause in the instant case. . It appears with sufficient clearness to uphold the finding of the circuit court that the northwest quarter of the northwest quarter was for a period of more than thirty days and within the six months next preceding the application for this tax deed occupied by a licensee of the respondents for the purpose of hauling across and banking on the Butternut creek, which runs through the tract last mentioned, saw logs in large quantities. Some of these were in the creek and some in rollways on the bank. There were three small rollways and seven or eight high rollways and the creek was full of logs. The person engaged in hauling and depositing these logs asked and obtained from the respondent permission so to do. It is argued that because sec. 1200 specifies actual occupancy or possession of the defendant, his agent or tenant, occupancy by a licensee will not suffice. The occupancy by a licensee may and often is of a very temporary character, but it also may be in some cases for rather notorious and continuous purposes, such as maintaining a building or other residence thereon, cutting timber, skidding and hauling it, or, as in the case at bar, using the land as a wharf or landing place for forest products in that navigation which has been recognized and upheld by the laws of this state and consists of driving or floating logs down stream to market' or to the place of manufacture. The fundamental distinction between a tenancy and a license of this character is that the license gives no estate or interest in tbe land to tbe licensee and'may rest in-.parol, yet is valid until revoked by tbe licensor.. - A license of tbis kind to occupy real estate borders very closely upon a tenancy at will, but it is- not identical. _ A licensee having no estate or interest in tbe land_ and yet in lawful occupancy thereof by permission of the owner, is in^substance occupying- in tbe right of tbe owner as agent of tbe- owner for tbe purpose of occupation only. This would seem quite clear upon principle. His agency "does not extend beyond tbe mere occupation unless 'there is something more in tbe authorization by tbe owner than mere -authority to occupy, as there was in Rockport v. Rockport G. Co. 177 Mass. 246, 58 N. E. 1017, 51 L. R. A. 779.

“A license in relation"'to land is a bare authority to do some act or series of acts upon tbe land of another without possessing any estate therein.” Hazelton v. Putnam, 3 Pin. 107. Accordingly we find in Wing v. Hall, 47 Vt. 182, 220, where tbe question arose "with referenee-to interruption of adverse possession by the entry of a licensee of tbe defendant’s grantor, the-court said:

“A compliance with tbe plaintiff’s fifth request would have excluded those claiming under tbe Perkins title from tbe benefits of tbe acts done by Richardson, although done under a" license-from Page, and tbis would have been error. Tbe acts done by Richardson, if done under a license from Page, are to be considered the' same as if they bad been done by Page; and such acts would inure to tbe benefit of tbe party bolding tbe title under which Page took possession.”

Occupation of tbe visible and noteworthy character here described .by tbe licensee was occupation by tbe defendant within the meaning of sec. 1200, Stats.

2. But tbe learned circuit court'erred as to tbe remaining forty-acre tract in allowing tbe defendant to have tbe advantage of a tender^ and deposit, by order extending tbe time "within which to make tbe same, without imposing costs upon said -defendants as a condition of. granting such favor. It is contended, by tbe appellant that the court was without power to extend the time fixed by sec. 1200, swpra,. We cannot agree with this. Power is expressly given by statute to extend the time, within which any proceeding in an action may be taken except the time for appealing from a judgment or order. Sec. 2831, Stats. This, however, must be done upon such terms as may be just, and where the extension of time will operate to permit an act or defense not theretofore done or pleaded which will absolutely defeat the plaintiff’s action, ^justice would ordinarily require that the plaintiff’s costs and disbursements, so far as this second forty-acre tract is concerned, should be paid up to that time, thus giving the plaintiff an opportunity to accept the tender and discontinue his suit. ,

By the Gowrt. — Judgment is affirmed as to the northwest quarter of the northwest quarter and reversed as to the southeast quarter of the northwest quarter, and as to the latter tract the cause is remanded for further proceedings in ac-. cordance with this opinion, the appellant to recover costs in this court.

A. motion for a rehearing was denied, with $25 costs, on January 13, 1914.