71 Wis. 88 | Wis. | 1888
This is an action of ejectment for lands in the possession of the defendant, which were a part of' the grant of the United States to this state made by act of Congress in 1864, and conferred upon the respondent company, and within the main body and place limit of said grant. The plaintiff proved title. The defendant introduced a tax deed for said lands, executed by the clerk of Price county to himself on the 4th day of June, 1883, on the tax sale of May 11, 1880, for taxes assessed for the year 1879. The said tax deed-was shown to be void for certain defects in the tax proceedings antecedent thereto, but “ not going to the validity of the assessment or affecting the groundwork of such tax.” The plaintiff took judgment without compliance with the provisions of sec. 1, ch. 305, Laws of 1880. The failure of the plaintiff to comply with this section is the error complained of.
I. It is contended by the respondent’s counsel that the judgment in such a case is independent of such payment, and that there should have been an order made by the court requiring such payment on the motion of the defendant, and, if the court had denied such motion, he should have appealed from such order, and not from the judgment. It will be observed that such paj^ment is a condition precedent to the entry of judgment.
II. It is contended that the tax deed set up by the defendant is absolutely void for defects in the tax proceedings “going to the validity of the assessment and affecting the groundwork of the tax,” and that therefore no such payment could be required as a condition of recovery.
1. Because the lands, as a part of said grant, were ex
2. It is contended that these lands were' not taxable in 1879 because the legal title was in the United States, and no patent had been issued to the company. It was sufficient that these lands had been fully earned, and that the company was legally entitled to the government patent. The company owned the lands, and if they only had an equitable title the lands were equally taxable in this state. This question was so decided in West. Wis. R. Co. v. Trempealeau Co. 35 Wis. 257; Wis. Cent. R. Co. v. Price Co. 64 Wis. 579.
III. The learned counsel of the respondent contends lastly that sec. 1, ch. 305, Laws of 1880, requiring such payments before the entry of judgment, in respect to the twenty-five per cent, interest per annum is unconstitutional.
We conclude, therefore, that before the judgment in this case was entered the order should have been made and the plaintiff should have made the payments required to be
By th-e Court.— The judgment of the circuit court is reversed, and the cause remanded with directions to make the order for the payments required by sec. 1, ch. 305, Laws of 1880, and for further proceedings according to law.