Becker v. Wing , 61 Wis. 252 ( 1884 )

Cassoday, J.

It conclusively appears that the plaintiff had a valid defense to the defendant’s action to foreclose his tax deeds, and had made it available by setting it up as subh.. Had that action proceeded to trial and judgment, the tax deeds would necessarily, from the facts appearing in this record, have been adjudged invalid. So stood the case when that action was discontinued, February 9, 1880. If the defense interposed in that action did not, by virtue of the statute, stop the running of sec. 1210d, E. S., in favor of the defendant and against the plaintiff, then this action was barred at the time it was commenced, which was the same day the other action was discontinued.

The statute provides, in effect,- that when a defendant in an action has interposed an answer as a defense upon which he would be entitled to- rely in such action, the remedy upon which, at the time of the commencement of such action, was not barred by law, and such complaint is dismissed or the action is discontinued, the time which intervened between the commencement and the termination of such action shall not be deemed a part of the time limited for the commencement of an action by the defendant to recover for the cause of action so interposed as a defense. R. S. sec. 4250. This, we understand, is a new section of a general nature going into effect with the Revised Statutes, Novena-' ber 1, 1878, and is certainly applicable to all prior statutes of limitation then in existence. Sec. 121 Od is simply a revision and continuation of sec. 6, ch. 834, Laws of 1878, which went into effect March 25, 1878. That section being in force several months prior to the time when sec. 4250 went into effect, and the latter section being general in its provisions, we are clearly of the opinion that it is applicable to cases arising under sec. 1210ci, and hence to this case.

Sec. 4250 certainty gave to the plaintiff here the right to rely upon the defense she interposed in the first action. Her remedy by ejectment against the tax deeds, in consequence of the defects set up in that defense, was not barred when that action was commenced, nor November 1, 1878, when sec. 4250 went into effect. Assuming that the nine-months’ limitation was set running March 25,1878, by sec. 6, ch. 334, Laws of 1878, notwithstanding the interposition of that defense, yet there was nearly two months of the time given by that section still remaining in which to commence this action, when sec. 4250 was enacted. The effect of that enactment was, therefore, to stop the further running of sec. 1210d during the pendency of that suit. This action being commenced immediately upon the discontinuance of the other, the plaintiff was not barred from availing herself of the same defects in the tax proceedings upon which the tax deeds were issued, as were interposed as a defense in the other action. Such defects, if not technically a “ cause of action,” were available in the other suit as a defense, and certainly gave to the plaintiff a substantial right of action, seasonably exercised, against any one claiming the lands under the tax deeds.

By the Court.— The judgment of the circuit court is affirmed.