Warren v. Putnam , 63 Wis. 410 ( 1885 )

Taylok, J.

The action in these appeals was brought by the Wa/rrens and Ba/rber,, as plaintiffs, against Putnam and Newton, to set aside a tax deed to forty acres of land, which the plaintiffs claimed to own as purchasers from the government, and under which tax deed the defendants claimed to own said lands and were proceeding to cut the timber therefrom. The plaintiffs asked an injunction against the defendants to restrain them from committing waste on the lands during the pendency of the action, and that they be perpetually enjoined from setting up any title to said lands under said tax deed, and for a judgment “ that the defendants be adjudged to pay to the plaintiffs full damage for the timber cut and removed from said land, and for damages to the freehold by reason of the cutting and destruction of said timber.”

It appears from the record that a temporary injunction was issued pending the litigation, and it also appears that previous to the commencement of this action the defendants had cut and removed a large quantity of the timber growing on the land and converted it'to their own use. The action was tried by the court, and the plaintiffs prevailed as to their title, the court holding that the defendants acquired no title to the lands by virtue of the tax deed undér which they claimed; and also adjudged that the plaintiffs were entitled to a judgment against the defendants for the value of 291,000 feet of pine logs, cut and removed from said lands by the defendants previous to the commencement of the action, and that the value of such pine logs so cut and removed was $813, with interest from the commencement of the action. ’ The defendants appealed to this court from the whole judgment; and the plaintiffs appealed from that part of tbe judgment which, awards to the plaintiffs the sum of $914.33 as damages for the cutting and removing timber from said lands before the commencement of the action, on the ground' that the damages awarded were not large enough.

Upon the defendants’ appeal the whole case depends upon the question of title. They claim under George Runkel, the grantee named in a tax deed purporting to - have been issued by Monroe county upon a sale for the nonpayment of taxes assessed thereon in 1869. The tax deed was in legal form, and was issued and recorded in the office of the register of deeds for Monroe county on July 16,1813. The lands described in the deed were unoccupied by any one for three years after the date and recording of the tax deed. There is no dispute but that whatever title Runkel had under his tax deed was conveyed to the defendants previous to the commencement of this action, and before the defendants cut and removed any timber from the lands. The plaintiffs showed a chain of title from the government to themselves before the action was commenced, and before the timber was cut by the defendants. The evidence also shows that George Runkel and wife, the grantee in said tax deed, on the 25th of February, 1874, and before he had conveyed his right and title under said tax deed to any other person, in consideration of the sum of $50 to him in hand paid by L. E. Amidon, who was then one of the joint owners of the original title from the government, executed and delivered a quitclaim deed of said lands to the said L. E. Amidon; that said deed was duly signed, sealed, and acknowledged by the said Runkel and wife, but was witnessed by only one witness. Such deed purported on its face to convey to the said Amidon all the right, interest, and claim whatsoever of said Runkel and wife in and to said premises to the only proper use and benefit of the said Amidon, his heirs and assigns. Said deed was not recorded in the office of the register of deeds until January 3,1882, and after the defendants had acquired their title by subsequent conveyance from Runkel and had recorded their deed. The deed so taken by Amidon was taken for the .benefit of himself and William D. Eox, who was a joint owner with him at the time of the original title to said lands. The defendants, and those under whom they claim, purchased without actual notice of the quitclaim deed from Runkel and wife to Amidon. Neither Runkel nor any person claiming under him ever paid any taxes on said lands at any time after the sale for the taxes of .1869, and the plaintiffs, and those under whom they claim, have always paid the taxes on said lands since the sale of 1870. If, therefore, the defendants have any title to said lands under their deed from Runkel, it is a purely technical legal title, not supported by the shadow of an equity.

Upon this state of facts it is claimed by the defendants that the three-years limitation ran in favor of those claiming under the tax deed, notwithstanding the fact that the grantee in such deed released his right under such deed to the original owners of the land before the expiration of said three years; in fact, before the expiration of one year. On the other hand, it is claimed by the plaintiffs that the tax claimant having released his right to the original owner within the three years next after the recording of the tax deed, the three-years statute ran in favor of the original owner, or that under that state of facts the statute did not run in favor of either party and the validity of the tax deed must be determined without regard to the statute of limitations. After a careful consideration of the very able argument of the counsel for the appellants upon this question, we are inclined to hold that the learned circuit judge was right in holding that such quitclaim deed by the tax-title claimant to the original owner within the three years next after the recording of his tax deed, was an abandonment and surrender to such original owner of the constructive adverse possession which arose in his favor by virtue of his taking such tax deed and placing the same on record, and which constructive adverse possession set the statute of limitations running in his favor; and that when that constructive adverse possession ceased by such abandonment and surrender of it to the original owner, the statute of limitations ceased to run in favor of his title, and thereafter it ran in favor of the original owner, and barred any right of action in favor of those claiming under the tax deed after the expiration of the three years from the recording thereof.

This court has repeatedly decided: (1) That if the tax-title claimant has been in the actual adverse possession of the lands described in the tax deed for three years next after the recording of the tax deed, the right of the original owner to show any irregularities in the tax proceeding is absolutely barred, even though the tax deed may be void upon its face. (2) That if such actual possession has been interrupted by any one claiming under the former owner during said three years, then the statute does not bar such owner’s right, but, on the contrary, the statute runs in favor of the original- owner; and unless the person claiming under the tax deed brings his action within the three years he is barred from maintaining any action to assert his rights under said deed. Lewis v. Disher, 32 Wis. 504; Gunnison v. Hoehne, 18 Wis. 268; Lawrence v. Kenney, 32 Wis. 281, 293; Jones v. Collins, 16 Wis. 594; Dean v. Earley, 15 Wis. 100; Lain v. Shepardson, 18 Wis. 59; Cutler v. Hurlbut, 29 Wis. 152; Wilson v. Henry, 35 Wis. 241; Haseltine v. Mosher, 51 Wis. 443. (3) That when the tax deed is in due form and recorded in the proper office, and the lands described therein remain vacant and unoccupied for three years or more after the recording thereof, the tax-title claimant is deemed to be in the constructive adverse possession, and the statute runs in his favor, and the original owner is barred from attacking its validity. Austin v. Holt, 32 Wis. 478; Lawrence v. Kenney, 32 Wis. 281. (4) The bar of the statute is held to run in favor of the tax claimant in the case last stated, upon the presumption of fact that the recorded tax deed creates a constructive adverse possession in favor of the tax claimant, which, if continued for the three years, is as effectual to bar the original owner as an actual adverse possession for the same length of time.

It is held by this court that this con structive 'adverse possession is based upon the presumed claim made by the grantee in the tax deed to the premises described therein, evidenced by his taking such deed and placing the same upon record, as against the original owner not having any actual possession; and it is also held that such constructive adverse possession is at once interrupted and destroyed by an actual possession taken within the three years by the original owner, or by any one claiming under him; and it seems equally clear that any act on the part of the tax-title claimant which is inconsistent with his supposed adverse constructive possession, would also interrupt and destroy the same. If he releases his claim during the three years to the original owner, such release interrupts his constructive adverse possession, and from the date of such release the statute ceases to run in his favor. Having, in fact, abandoned his constructive adverse possession within the three years by such release, he can no more transfer to his grantee the right to set up such constructive adverse possession as a bar to the right of the original owner, than he could if he had released and surrendered an actual adverse possession to such owner during said three years.

The nature of this constructive adverse possession of the tax claimant when the lands are vacant, which causes the statute of limitations to run in favor of such claimant, was considered in the case of Lewis v. Disher, 32 Wis. 504, 507. In that case Chief Justice Dixon says:

“ The constructive possession of unoccupied land, which follows the tax deed and vests in the grantee, is, for all the purposes of the statute of limitation and of becoming conclusive evidence of title under it, of the same nature, and operates in the same way and with the same force, as an actual adverse possession for the same period of time, where a possession of the latter kind is taken and relied upon as a bar under the statute. The constructive possession is in this respect of the same nature, and the force and effect of it is the same, as the twenty years adverse possession Avithout color of title, or the ten years with, under the other statutes limiting the time within which actions for the recovery of real estate must be brought. The constructive possession is an adverse possession, and the nature of such a possession, or what it must be, when it is actual, is weE understood and defined in the law. • It is weE settled that an actual adverse possession, to be avaüable as against the true OAvner, and to operate to bar his rights and to transfer the title to the adverse claimant, must have been continuous and uninterrupted during the period of limitation prescribed, and that any cessation of such possession, or pause or intermission in it, or any re-entry and actual and peaceable occupation and holding by the true OAvner, before the period of limitation has expired, wiE restore such owner to his original right, and defeat the prescription of the adverse claimant, or postpone it so that he can thenceforth only assert or hold by virtue of it from the time his adverse possession is renewed and shaE be thereafter continuously maintained and held. This doctrine was examined and fully recognized by this court in Sydnor v. Palmer, 29 Wis. 226. See, also, Haag v. Delorme, 30 Wis. 591. And so strict is the rule that it has been held, if the adverse possession be broken tut for a day, its effect is entirely destroyed, and, so far as that possession is concerned, it is at an end. And in some cases the interruptions of simple trespassers, when quite decided and indicative of claim, have been declared to be sufficient to break the continuity and defeat the adverse possession. Tyler on Ejectment and Adverse Enjoyment, ch. 51, pp. 907, 910, 911, and authorities cited. There is no reason why the rules thus established with respect to an actual adverse possession and enjoyment, should not also apply to and govern an adverse' possession which is constructive. We think they do apply and govern, and that the constructive possession of unoccupied land, to be effective as conclusive evidence of title in favor of the grantee in the tax deed, and to bind and conclude the former owner, must be continuous from the date of the recording of the tax deed to the full end and expiration of the three years prescribed by the statute.”

I have made this extended quotation from the opinion of the learned chief justice for the reason that I consider it conclusive upon the point raised in the case at bar.

It is clear from the opinion above cited that if the tax-title claimant had taken actual adverse possession under his deed, and during the running of the three years and while in such actual possession he had acknowledged the right of the original owner, and consented to hold the possession in the future subordinate to the title of such original owner, the statute would cease to run in favor of the tax deed; and .if, after so acknowledging the right of the original owner and holding subordinate to his title, he conveyed his title to a third person who had no knowledge of such arrangement, such grantee would not be in any better position in regard to his title, so far as adverse possession and the statute of limitations is concerned, than his grantor; and, according to the reasoning in the case above cited, the constructive adverse possession which sets the statute .running and keeps.it running in favor of the tax deed, being of the same nature as an actual adverse possession, it can be interrupted in the same way by an,abandonment thereof by the grantee in the deed, or by surrendering such constructive adverse possession to the original owner. And the fact that such surrender or abandonment is not made known to his grantee does not in any way affect the running or not running of the statute in his favor. See Knox v. Cleveland, 13 Wis. 245, 252.

For the purposes of this case it may be admitted that the release of the tax claimant to the original owner, not having been recorded, would not affect the title of the grantee of the tax claimant who purchased without notice; but the only title he would get in such case would be the title actually conveyed by the tax deed. If his grantor’s title has been barred by the statute of limitations having run against it and in favor of the original owner, his right under the deed would also be barred; and if the statute of limitations has run in favor of the tax deed he would take the title perfected by such limitation. The registry act has nothing to do with the question of title which is acquired or lost by adverse possession. A title so acquired or lost depends wholly upon the acts of the parties not appearing upon the records, and not protected or affected thereby; and a grantee, who claims that his grantor’s title has been perfected by such adverse possession, must establish such adverse possession by the same proofs that would be required of his grantor, and his claim would be defeated by the same proofs that would defeat his grantor. Upon this question the registry acts neither make for or against his claim of title.

In this view of the case the learned circuit judge was right in holding the tax deed no protection to the defendant, and his judgment in favor of the plaintiff must be affirmed.

The plaintiff has also appealed, on the ground that the court erred in not awarding him greater damages, and claims .that he was entitled to damages under sec. 4269, R. S. -18Í78. Upon the facts in the case it appears that the defendants were acting in good faith claiming title to the land; and as the action on the part of the plaintiffs is an equitable action to establish their title to the lands in controversy, and to recover compensation for the waste done thereon by the defendants, it is not an action under said statute, and consequently the rule of damages prescribed by it is not applicable to this case. The damages awarded are in accordance with the rule established by this court previous to the enactment of said statute, and that rule is the equitable rule under the facts of this case.