Wilson v. Henry

35 Wis. 241 | Wis. | 1874

Dixon, C. J.

The court sees no reason to doubt, qualify or disturb the rules laid down in Sydnor v. Palmer, 29 Wis., 226, 251-3, for the construction of statutes of limitation, nor to question the correctness of the construction which was given to the statute there under consideration. To determine precisely what was there decided, and the application and effect of the decision in a case like the present, it is necessary that the language of the opinion should be carefully read and observed. The language is: “ Evidence of adverse possession is always to be strictly construed, and every presumption is to be made in favor of the true owner.” Again it is said : “ The party whose title is to be destroyed or remedy barred, may properly stand on the letter of the statute, and insist upon a strict compliance with its conditions. ”

It should also be borne in mind that the party seeking to take advantage of the statute in that case, and against whom the rules of strict construction were held, was the claimant under the tax deeds. In the application of the rules, the owner of the land at the time the taxes were assessed, and whose title was to be destroyed or remedy barred by operation of the statute and oí the alleged adverse possession, was regarded as the true owner ; and it was in his favor and in support of his title that the strict construction was given. The construction favored the title of the original owner, who was looked upon as the true owner, and disfavored that of the claimant under the tax deeds.

' In the present case the defendant Henry, or the party whom he represents, Mr. Stephenson, must be regarded as the true owner, notwithstanding any technical defects or objections which have been found or raised to his title, or to some of the conveyances or transfers which go to form his chain of title. As it respects the plaintiff, whose sole connection with the title or interest in the land is by virtue of the tax deed, and who does not stand before the court to challenge the title of the defendant or to exhibit or take advantage of its defects except as he can show and assert title in himself under the tax deed, the defendant Henry, as the representative of Stephenson, is to be deemed the true owner. Certainly all the equities, if not the strict law, are with the defendant as such owner for the purpose of applying the rules, as much so as if he had shown an absolutely unblemished legal title at the time the taxes in question were assessed. It is his original, true and otherwise unquestioned title which is sought to be cut off by virtue of the statute of limitation and of the adverse possession claimed under it and under the tax deed.

How then stands this case with reference to the doctrine of Sydnor v. Palmer? The plaintiff seeks to cut off the remedy and destroy the right of the true owner, and to show an indefeasible title in himself by virtue of an adverse constructive possession of the land for three years next after the record ing of his tax deed. Within the rule, the evidence of such adverse constructive possession must be strictly construed • and the defendant may avoid the bar and defeat the right as serted by the plaintiff on this ground by showing any actúa occupation and use of the premises under his title for any por tion of the three years so required to perfect the title of the plaintiff or to debar the remedy of the defendant. This principle has already been settled by this court in the case of Lewis v. Disher, 82 Wis., 504, and it is needless to add to the discussion -which will there be found. The court there say: “In order that the claimant by tax deed may assert or acquire title to unoccupied land in that way, or by lapse of time under the statute, it must appear that the land remained and was continuously unoccupied for the whole period during which the statute was running. Any intervention and actual occupancy during the time by the former owner, or any person for Mm, clisj engages the bar of the siatute and relieves the former owner from the conclusive effect which would otherwise be given-to the tax deed.”

But, as will be seen from the same decision and others by this court with which counsel are familiar, the effect of an actual possession taken and held by the former owner during the whole or any considerable portion of the three years, is not only to disengage the bar of the statute when resorted to in favor of the grantee by tax deed, but also to create a bar against him and in favor of the title of such former owner. It operates in favor of the true or former owner thus entering and holding, to cut off the remedy of the grantee by tax deed, and to annul his title whatever it may have been.

In view of these well. settled principles, this court is of opinion that it was error for the court below to reject the offer of proofs made by the defendants on the trial, and especially that part of the offer in which the defendants proposed to show “that from 1858 to the commencement of this action, during the mining season of each year, from two to ten miners have constantly worked and mined for lead ore upon said land, such miners being usually farmers, -working their farms during the summer season, and mining during the winter season, such miners so working upon said land under verbal lease from Henry, acting as Stephenson’s agent, they paying rent to Henry; also that a custom exists where this land is situate, making it'obligatory upon the land owner to hold mineral diggings ior the miner operating them during the summer season, though the miner does not work during such summer season upon such diggings; also that the mining for said period upon this land was mostly near the surface of the ground and in open cuts, so as to be plainly visible to all; also that occasionally a miner worked upon said land under Stephenson during said time in the summer seasons; also that Stephenson has paid all the taxes assessed upon said land since it was deeded to him by Collier’s executors, except the taxes for the nonpayment of which the land was sold and the tax deed to the plaintiff was made; also that Charles West, Thomas Holmes and Levi Hildreth were tenants of Stephenson, mining upon said land at the time they became tenants of the plaintiff, as testified by the plaintiff, and that they wrongfully attorned to the plaintiff.”

The time included in the foregoing offer embraced the whole period of the three years from and after the recording of the plaintiff’s tax deed; and the facts, if established, would divest the plaintiff of all constructive possession during the same period. They would not only disprove and destroy his constructive possession, but they would turn the statute of limitation against him by showing the actual possession and occupancy of the former owner, thus cutting off any title acquired under the tax deed unless the plaintiff saw fit to bring his action to recover the possession within the three years. The offer, if proved as made, would have shown that the plaintiff was thus under the necessity of bringing his action, and that, not having done so, he had lost his title, if any, acquired by the tax deed, and could not maintain this action, which was not instituted until after the expiration of the three years. It would have sustained the plea or answer of the statute of limitations made by the defendants, so as to protect them and the title under which they claim against the present action and the right now set up by the plaintiff.

The other objections and exceptions contained in the record, and which are quite numerous, have not been considered by the court, and will not now be spoken of. They have been omitted partly for want of time, and partly because the offer, if established on a subsequent trial, may render it unnecessary ever to consider them.

By the Court. — Judgment reversed, and a venire de novo awarded.