Eaton v. North , 32 Wis. 303 ( 1873 )

LyON, J.

I. It is claimed, in support of the demurrer, that the last tax deed should have been issued to the plaintiff instead of Eastman, it appearing by the averments in the complaint that Eastman had no interest in the premises conveyed by it when the same was issued to him. In a similar case decided in 1865, this court held that the second deed could not properly be issued to a person holding a quitclaim deed of the premises from the assignee of the tax sale certificate, but must be issued to the latter. Slate ax rel. White v. Winn, 19 Wis., 304. That decision is conclusive against the position of counsel for the defendant above stated, unless the law has been changed in that respect by the legislature. Oh. 32, Laws of 1866, provides for issuing a second tax deed, when the first is void or defective for any reason, to the assignee of the grantee named in the first deed. It is claimed that this law is appli-. cable to the tax deed dated December 31,1867, and is the only authority for issuing such second deed. If this view is correct the second deed is void, because Eastman, and not the plaintiff, is named therein as grantee; and the demurrer to the complaint should have been sustained.

But we are of the opinion that the law of 1866 is not applicable to this deed. It contains a proviso to the effect that no deed shall be issued under its provisions after three years from the recording of the insufficient or defective deed. If that law applies to this deed, then there was no legal authority for its issue to any person, because more than three years had elapsed after the recording of the void or defective deed before the law was enacted, and the plaintiff is remediless. But it is well settled that the legislature has no power thus to destroy the right of Eastman or the plaintiff to a proper deed, although it might have fixed a reasonable time within which the right should be exercised. Hence, if it was the intention of the legislature that the act should apply to cases like the present one, the act is void as to such cases, and leaves them as they stood before the act was passed.

It has been very ingeniously argued that the act above mentioned is applicable to the tax deed under consideration in part, and in part not applicable. The argument is not satisfactory. It seems to us that the more reasonable doctrine is, that the legislature did not intend that the act should apply to cases where the defective tax deeds had been recorded more than three years before the enactment thereof, but left that class of cases untouched. It is fair to assume that had it been intended that the act should reach all cases of defective tax deeds, the proviso would have been very differently worded. Its operation would have been restricted to cases within the power of the legislature. We are unable to find any good reason for holding that one part of the law was designed to operate in all cases, and another part only in a particular class of cases. The language admits of no such construction. (Tay. Stats., 439, § 170.)'

It follows from these views that the second tax deed was properly .issued to Eastman instead of the plaintiff.

II. The only other objection to the tax deed set out in the complaint which it is necessaiy to notice, is, that it could not properly be issued after the lapse of twenty-seven years from the sale, and fifteen years from the date of the defective deed.' It is claimed that by analogy to the statute of limitations, the court should hold that the right to a second deed was barred by lapse of time.

The difficulty with this position seems to be, that there is no statute and no rule of the common law which limits the time within which the second tax deed might issue, or which authorizes us to resort to the statute of limitations enacted for other and different cases, and hold the same applicable by analogy to tbis casa, It is true that a person may prescribe for an easement, after twenty years adverse user of tbe same, and tbis time is said to be fixed by analogy to tbe statute of limitations. But tbe right by prescription, is, after all, a right given by tbe common law. In this case, as before observed, there is no common law rule which we can apply, and thereby cut off the right of Eastman or of the plaintiff to a valid deed, because of the delay in obtaining it.

We think that the demurrer to the complaint was properly overruled.

By the Court.— The order of the circuit court overruling the demurrer is affirmed.