Haseltine v. Simpson , 58 Wis. 579 ( 1883 )

Cassoday, J.

1. It- is urged that the clerk of Oconto county had no authority to execute the tax deeds to the defendant, for the reason that the lands covered by the deeds were at the time of their execution in the county of Hew, which was attached to Shawano county for all county and judicial purposes by ch. 114, Laws of 1879. That act did purport to define the boundaries of the county of Hew to a certain extent, but such boundary was left incomplete. The act provided that all the territory of Oconto county included within such incomplete boundaries should constitute and be known as the county of Hew, which, by the terms of the act, was thereby attached to and made a part of the county of Shawano for all county and judicial purposes, until it should appear to the secretary of state, from a census duly taken, that the said county of Hew had a population of 1,000, when, it should be organized by the election of county officers, as in other counties of the state; and the act provided, also, for a division of the property and liabilities of the respective counties, and that all tax certificates on lands embraced within the county of New should, on demand of the county treasurer of Shawano county, be assigned to Shawano county, and by it held in trust for the county of New until the same should be organized, and then to be turned over to it; and that as soon as the county of New should contain the requisite population, the secretary of state should give public notice of an election for all county officers. By ch. 19, Laws of 1880, the name of the county of New was changed to Langlade. Oh. 247, Laws of 1880, was 'enacted to correct and fix the boundaries between Langlade and Shawano, and to repeal such portions of oh. 114, Laws of 1879, as conflicted therewith. It does not appear that the requisite population existed, nor that any election for county officers was ever had, nor that any organization of the county of New or Langlade was ever effected until long after the issuance of the deeds in question. These things being so, and there being no attempt to divide the county of Oconto until long after the taxes in question were assessed and returned delinquent and sold, we must hold that even if the lands were included in the new county, yet the deeds were properly executed by the clerk of the old county. Austin v. Holt, 32 Wis., 478.

There is no evidence of any demand by the treasurer of Shawano county for an assignment of such certificates to that county, and there seems to be nothing in the act purporting to authorize the clerk of the board of that county to issue tax deeds thereon. Without such express authority the right would hardly be insisted upon. Besides, it is urged that there could be no new county without complete boundaries, and that if there could, yet it could not be attached to another county for county purposes. But under the ruling already made.it is not absolutely essential- to pass upon these questions, and hence they are reserved for futux’e consideration.

2. For the reasons given we- must hold that, until the complete organization of the new county, tax deeds so issued were properly recorded in the county of Oconto, and that such record of a deed properly executed by the proper officer, and in the form required by law, would set the statute of limitations running in favor of the grantee as to unoccupied lands.

3. It is urged that the evidence is insufficient to sustain the finding that the lands in question were in the town of Langlade at the time they were assessed by that town in 1816. Undoubtedly the county board had the power to change the boundaries of towns therein. On March 2,1876, it was ordered and determined by the county board that certain townships therein named, in which were situated the lands in question, be and were thereby set off from the towns therein designated, and organized into a new town by the name of Langlade, and a place was therein designated for the first town meeting of the town. The order was substantially in the form required by the statutes, and there was no evidence that it was not published, nor that any step essential to the complete organization of the town was omitted by any public officer, but on the contrary it was proved that such order and determination were duly published. These facts clearly distinguish the case from Smith v. Sherry, 54 Wis., 120. Certainly secs. 30, 31, 32, ch. 13, E. S. 1858 (see. 674, E. S.), did not make the publication a nullity merely because the order was published among the proceedings of the board, and not separately.

4. It was claimed in the oral argument that the defendant is not in a position to avail herself of the benefit of the statute of limitations, because she did not plead it in the manner required by law. Certainly the answer'in this respect is informal, but no objection to evidence offered under it was made upon that ground, and the poink does not appear to be made in the appellants’ printed brief. We are also to remember that evidence is not to be excluded merely because a pleading is indefinite and uncertain. The remedy in such case is by motion to make the pleading more definite and certain. Redmon v. Phœnix Ins. Co., 51 Wis., 298. Certainly such an objection made for the first time upon the argument in this court cannot prevail. We cannot, therefore, treat the plea of the statute of limitations as a nullity, but must give to the defendant the same benefit she would have derived from it under the evidence, if it had been properly pleaded.

5. It is urged that by reason of the provisions of ch. 114, Laws of 1879, above referred to, the treasurer of Oconto was bound to assign the tax certificates to the treasurer of Shawano, and that any other assignment was a nullity, and hence that the plaintiff got nothing by virtue of the assignment to him. But we are clearly of the opinion that sec. 1210d, R. S., has put that question to rest. The tax deeds were each issued upon sales, made prior to March 25, 1878, for the nonpayment of taxes theretofore levied, and were respectively recorded September 16, 1880, and October 2, 1880, while the action was not commenced until January 18, 1882. Secs. 1210d and 1210<s, R. S., were designed to put at rest all questions of irregularity not excepted from their operation, and coming within the provisions of either one of them. To question irregularities occurring prior to the sale, the action should be commenced within nine months after making the sale. To question irregularities occurring prior to the certificate, the action should be commenced within nine months after the date of the certificate. To question irregularities occurring between the issuing of the certificate and the issuing of the deed, the action should be commenced within nine months after the recording of the deed. Mead v. Nelson, 52 Wis., 402; Dalrymple D. Milwaukee, 53 Wis., 178; Manseau v. Edwards, 53 Wis., 457; Dreutzer v. Smith, 56 Wis., 292. The irregularities thus complained of occurred after the issuing of the certificate and before issuing the deed, and hence, under the statute, were barred from all controversy after the lapse.of nine months from the recording of j;he deed without the commencement of an action.

6. For the same reasons, the offer to prove that the tax certificates were first assigned to another party, and from him to the defendant, without any written assignment, was unavailing. The statute having cured such defect, if any, the case was no longer within the principle of Smith v. Todd,, 55 Wis., 459; Dreutzer v. Smith, 56 Wis., 292, and cases there cited. Those cases simply held that the defects referred to were available if insisted upon within the time and in theynanner prescribed, but have no bearing upon a case where the alleged defect was not insisted upon in time.

7. For the same reasons, the affidavit of non-occupancy, if defective, as claimed, was cured by the statute of limitations.

8. We are inclined to think that the plaintiff Mrs. Sohol-field had the right to redeem, under the statute and authorities cited by her counsel, but, as she has failed to exercise that right, the question is not squarely before us for consideration. As the time has not yet expired, and asa new trial may be had under the statute, perhaps we ought to say that we see no constitutional objection to such legislation.

9. The county treasurer, a witness on behalf of the defendant, on cross examination was asked these questions: li Question. What interest, if any, have you in this case? Defendant objected as incompetent and immaterial. Sustained. Plaintiff excepted. Q. When this certificate was assigned, were you interested in the fact of having it assigned? Same objection and same ruling as before, and plaintiffs again excepted.” Were these rulings error? The treasurer being the proper official to make the assignment, be, of course, as such officer, had an interest in making the' assignment. If that was the only interest inquired about, then the questions were each immaterial. If the object of the inquiry was to show that he was in collusion with the assignee of the certificates for his own personal benefit, or that he secured to himself a pecuniary benefit from such assignment, outside of the fees of his office, then some questions pertinent to such inquiry should have been put. But we do not think that either of the above questions was broad enough to elicit such testimony. Coleman v. Hart, 37 Wis., 180.

10. Whether such collusion by such officer in making such assignment, or the making of the same- for his own pecuniary benefit, would be such a fraud as would prevent the running of the statute of limitations, quaere. McDonald v. Daniels, ante, p, 426.

Upon the whole record we find no material error, and hence the judgment of the circuit court must be affirmed.

By the Court.— Judgment affirmed.