Wright v. Wing

18 Wis. 45 | Wis. | 1864

By the Court,

DixoN, O. J.

We do not see that the statutes of 1853, ch. 57, and of 1854, ch. 66, are of any force in this case, except as to the tax sale of 1858. The Revised Statutes of 1858, ch. 18, sec. 153, continues them in force only as to sales theretofore made. By sec. 1, ch. 191, R. S. 1858, they were expressly repealed from and after the first day of January, 1859. For the sales of 1859 and 1860, the case must depend upon the Laws of 1859, ch. 22. But whether tbe case depends upon one of these statutes or another, we cannot agree with the plaintiff’s counsel, that tax deeds are in either instance void because prematurely issued. Section 109, ch. 15, R. S., 1849, revived by the statute of 1854, and in force at the time of the first tax sale, expressly declared, that the estate vested in the grantee by tax deed, was “subject, however, to all unpaid taxes and charges, which are a lien thereon, and to redemption as provided in this chapter." The same chapter provided that the lands of minors might be redeemed at any time before such minors became of age, or within one year thereafter, and those of idiots, married women and insane persons, within five years after such sale. Sec. 104. It also provided that the owner, occupant or any other person, might redeem land sold for taxes, at any time within three years from the date of the certificate of sale, and that the treasurer should give to the purchaser a certificate in writing, dated the day of the sale, describing the lands, the amount paid, and the time when the purchaser would he entitled to a deed. Secs. 102 and 98. It likewise required the clerk of the board of supervisors of each county, at least six months before the expiration of the time limited for redeeming lands sold for taxes, to cause to be published in a newspaper, &c., once a week for twelve successive weeks, a list of all unredeemed lands, specifying each tract or lot, the name of the person to whom assessed, if to any, and the amount of taxes,' charges and interest calculated to the last day of redemption, together with a notice, that unless such lands should be redeemed on or before the day limited therefor, specifying the same, they would be conveyed to the purchaser. Sec. 100. The same provisions are found in the statute of 1859, secs. 25, 20, 18, 14 and 16. From these provisions two propositions are manifestfirst, that the legislature intended that there might, under some circumstances, be a redemption after the execution and delivery of the deed ; and second, that the time at or after which the purchaser should be entitled to such execution and delivery should be fixed and certain. First, the statute declared that the estate conveyed by tbe deed should be subject to redemption as therein provided; and second, that the treasurer, in his certificate of sale, and the clerk of the board of supervisors in his advertisement of unredeemed lands and notice, should name the time limited for redemption and at which the purchaser would become entitled to such deed. It seems to us clear, that the period thus definitely prescribed, which those officers were assumed to know and by which they were to be . guided, could mean no other than the period of three years given to tax payers in general or persons laboring under no disability. Otherwise they were bound, the treasurer first, and the clerk of the board of supervisors afterwards, to acquaint themselves with the true 'state of title to every piece of land sold for taxes and unredeemed in their county_in most cases an impossibility on its very face, and which the legislature never could have intended. The question of title to lands is a judicial question, oft-times of great nicety and discrimination, depending upon the application of many abstruse and difficult rules ; and it would be strange indeed, if the legislature had put these collecting officers upon the chase to look up and decide it for themselves. Rut more than this, they would be bound to ascertain the ages of all minors, owning lands sold for taxes, and give certificates and notices according to the age and interest of each, which would be another impossibility. Again, there would have been imposed upon them questions of sanity, idiocy and marriage, all judical, and little less intricate and perplexing than those immediately connected with land titles. All these questions must have been decided at the peril of the entire proceedings being void, in case of any error or mistake. We are confident that the legislature never intended these things, but that the deeds under consideration were properly issued at the expiration of the period of general redemption, leaving the plaintiff to exercise her special right of redemption afterwards, in case the facts were such as to authorize it.- And this seems to be the construction which the legislature itself has put upon the statute. For in the statute of 1854, in prescribing the time when the holder of the certificate shall be entitled to a deed, instead of the words “ after the expiration of the time prescribed by law for the redemption thereof,” used in sec. 109, R. S. 1849, we find the words “ after the three years for the redemption thereof shall have expired.” They were undoubtedly used as equivalent expressions.

Nor are provisions of this kind so novel as the plaintiff’s counsel seems to suppose. Upon examination of Blackwell on Tax titles, chap. 27, it will be seen that like provisions have been made and similar rights of redemption given in other states. When the right of redemption exists after the execution of the deed, the title of the grantee is, of course, conditional. It is liable to be defeated by a redemption in conformity with the law ; and as against the person entitled to redeem, and who does redeem, the deed cannot have that conclusive effect ascribed to it by statute in other cases. The same law under which the purchaser acquires his right to the estate, also confers the privilege of redeeming upon the owner. The deed, if not made upon the express condition, is certainly subject to the implied one, that the estate granted shall revert to the former owner in case a redemption is made.

And this brings us to another question, and that is, whether this action can be maintained without a redemption or offer to redeem on the part of the plaintiff. We think it cannot. It is a suit in equity to restrain the defendants, the grantees in the tax deeds, their agents and servants, from entering upon, cutting and carrying away the timber, and exercising other acts of control and ownership over the premises described in the deeds. It does not appear that the plaintiff has redeemed, or that she proposes to do so. Neither is it shown that the deeds are so irregular or void as to justify a refusal to redeem. It is true that the plaintiff alleges in her complaint, by way of excuse for not haying paid the taxes, that more than half of the amount for each year was assessed for the purpose of defraying the expenses of building a court house at Shawanaw, and that Shawanaw is not the county seat of the county. This is the substance of all that is alleged in this behalf, and it is obviously insufficient for the purpose of putting in issue the legality of the taxes in that respect. No facts are stated, nothing throwing any light upon the nature of the controversy about the county seat, if such controversy exists. No relief is claimed upon this ground. Indeed it appears very clearly that the gravamen of the complaint is the supposed premature execution and delivery of the tax deeds, and that the pleader relies upon that as the sole ground of relief. Failing in that, the action rests entirely upon the fact that there exists on the part of the plaintiff a privilege of redemption, which, unless it has already been exercised, is now gone as to some of the deeds by lapse of time. Upon that fact alone, without a redemption or offer to redeem, the plaintiff has no standing in a court of equity. The interest in the estate depends exclusively upon a redemption. Without redeeming she has no present interest, the title being vested in the defendants subject to her right of redemption, which is a mere privilege that she may exercise or not at her option. Equity will not interfere upon the bare possibility that she may hereafter choose to redeem and thus become interested.

As the complaint shows no cause of action against any of the defendants, it becomes unnecessary for us to consider the propriety of that part of the order dismissing the action as against the defendant Nathan Paine.

It follows from these views that the order appealed from must be affirmed.

Ordered accordingly.