Sherry v. Gilmore

• Decision Date: 29 October 1883
• Citation: 17 N.W. 252,58 Wis. 324
• Parties: SHERRY AND ANOTHER v. GILMORE AND ANOTHER.
• Court: Wisconsin Supreme Court

58 Wis. 324

17 N.W. 252

SHERRY AND ANOTHER

v.GILMORE AND ANOTHER.

Supreme Court of Wisconsin.

Filed October 29, 1883.

Appeal from circuit court, Waupaca county.James & Crosby, for respondents, Henry Sherry and another.

S. D. Hastings, Jr., and Myron Reed, for appellants, W. W. Gilmore and another.

TAYLOR, J.

This is an action of ejectment, brought by the respondents to recover certain lands claimed to be owned by the appellants by virtue of certain tax deeds issued to them by Marathon county. The action was commenced in the first instance against the respondent by filing the summons and complaint with the clerk of the circuit court of Marathon county, and obtaining an order from a court commissioner of said county for the publication of the summons, on the ground that the defendants were not residents of the state, or, if they were, their residence in the state could not be ascertained by the respondents. The order of publication was made December 24, 1878. At a special term of the circuit court for Marathon county, held in March, 1879, the appellants appeared in this action for the special purpose of making a motion to vacate and set aside the order of publication made in said notice, December 24, 1878. The motion was granted and an order made by said court, dated March 18, 1879, and filed with the clerk of said court, April 3, 1879. The order reads as follows:

“[Title of cause.]

This cause coming on to be heard upon the motion of the defendants, appearing specially for that purpose, to vacate and set aside the order of publication heretofore made herein, and the court having heard George Lines, of counsel for the defendants, in support of said motion, and James O. Raymond, Esq., of counsel for the plaintiffs, in opposition thereto, now, on motion of Myron Reed, attorney for the defendants, it is ordered that the order of publication heretofore made herein by M. M. Charles, Esq., court commissioner in and for Marathon county, Wis., dated December 24, 1878, directing the service of the summons in this action upon the defendants above named by publication, be and the same is hereby vacated and set aside, with $10 costs.

Dated March 18, 1879.

+-----------------------------+
                ¦[Signed]¦G. L. PARK, Judge.” ¦
                +-----------------------------+
                

In the original summons, and in the order of publication, the defendants were designated as “Gilmore & Ware.”

Exceptions were taken to the above order by the plaintiffs, but no appeal was taken therefrom, and no further proceedings were had in the action until April 10, 1880, when the plaintiffs obtained an order to show cause why they should not be permitted to amend the summons and complaint in the action, as well as the lis pendens, by “making W. W. Gilmore and De Witt Ware” defendants in place of “Gilmore & Ware,” and ordering such amended summons and complaint served upon the defendants within 20 days from the date of the order. The amendment was allowed by the court, and the amended summons and complaint was served on the defendants, April 29, 1880. To this amended complaint the defendants filed an answer. No answer was put into the original complaint by the defendants. The defendants' answer admits that they are in possession of the lands described in the complaint, deny all the other allegations of the complaint, set up title in themselves by virtue of a tax deed issued by the county of Marathon to the defendants by their firm name of Gilmore & Ware, dated November 22, 1877, and recorded in the office of the register of deeds of Marathon county, November 22, 1877, and for a further defense they allege that the cause of action stated in the complaint did not accrue within nine months before the commencement of this action.

Afterwards, by leave of the court and upon payment of costs, the defendants filled a supplemental answer, setting up that since the commencement of the action two other tax deeds had been issued to the defendant Gilmore by said county of Marathon,--one bearing date December 13, 1879, upon certificates of sale of May 11, 1875, and the other, May 11, 1880, on certificates of sale bearing date May 9, 1876,--by which tax deeds the lands described in the complaint were conveyed to the defendant Gilmore. They also allege in the supplemental answer that no action to cancel or annul any of the certificates upon which said deeds were issued had been commenced by plaintiffs previous to the commencement of this action. They further allege that the present action was not commenced against these defendants until the service of the amended summons and complaint, on the twenty-ninth of April, 1879, and that all actions to set aside the deed of conveyance to the defendants, mentioned and described in their original answer, is barred by the statute of limitations.

Upon these pleadings the cause was tried in the circuit court. The plaintiffs showed title to the land by direct conveyance from the United States to their grantors, and rested. The defendants then offered in evidence a tax deed from the county of Marathon to Gilmore & Ware, dated September 3, 1877, conveying all the lands in controversy. This deed was recorded in the office of the register of deeds of Marathon county, November 22, 1877. The plaintiffs objected to this deed, or the record thereof, being received in evidence. The objection was overruled, and exception taken. The defendants also offered in evidence the two other tax deeds set out in their answer, together with the record of the same. No objection was made by the plaintiffs to the reception of these deeds in evidence, or to the record of the same. Gilmore then testified as a witness for the defendants that he resided in Waupaca, Waupaca county, December 23, 1878, and never was a resident of Marathon county, and that he was not a non-resident of the state on December 23, 1878, but was a resident of Waupaca county; that the defendants Gilmore and Ware were not a corporation; that he could not state when the summons and complaint was mailed or received by him; and that there was no service upon him, except that he received by mail a copy of the original summons and complaint, until the service of the amended summons and complaint in April, 1879. He also testified that he had paid the taxes on the land each year from the time he took the first tax deed until the present time. It was admitted that the summons and complaint was not placed in the hands of the sheriff of Waupaca county to serve until the service of the amended summons and complaint.

The plaintiff then offered in evidence the affidavits of non-occupancy of the lands, purporting to have been made at the time the tax deeds were issued, for the purpose of showing that the deeds were irregularly issued, and therefore void. They also offered in evidence the records of the county board of supervisors of the county of Marathon, in relation to the organization of the town of Weston, in said county. There is no dispute as to the regular organization of the town of Weston, in said county, previous to 1860, but it is claimed by the plaintiff that the township in which the lands in question are situated was never legally attached to the town of Weston. The record of the board shows that an order was passed by the county board of supervisors, April 30, 1860, attaching the township, in which the lands in question are situated, to the said town of Weston, and that, from that time down to the present time, that township had been considered a part of the town of Weston, and the taxes had been constantly levied upon the lands in said township from 1860, the time of the adoption of the resolution annexing it to the town, to the present time, by the proper officers of said town.

The above statement of the evidence given on the trial is all that is deemed necessary for the determination of the questions involved in this appeal. The learned circuit judge found as a fact that the lands in question in this case were never attached to the town of Weston so as to become a part thereof, and it may be presumed, therefore, that upon the authority of Smith v. Sherry, 54 Wis. 114, [S. C. 11 N. W. REP. 465,] he held that all the tax deeds issued to the defendants were void, and that there being an entire want of jurisdiction in the officers of the town of Weston to levy any tax upon such lands, the short statute of limitations did not and could not render them valid for any purpose. We think the learned circuit judge erred in holding that the lands were not a part of the town of Weston. The proofs clearly show that they had been treated as a part of said town for nearly 20 years before the plaintiffs' action was commenced, and for 13 years before the taxes upon which the defendants' oldest tax deed was issued were levied. After such lapse of time every presumption must be in favor of the regularity of the proceedings which attached the territory to the town. There was no evidence given by the clerk of the board of supervisors in this case which should have been held sufficient to overcome the presumption of the regularity of such proceedings. That he testified as to the want of proof of publication of the order attaching the territory to the town, was wholly insufficient to overcome the presumption in its favor after such a lapse of time.

The statute then in force did not require that any proof of publication should be made or...