Easley v. Whipple

• Decision Date: 20 February 1883
• Citation: Easley v. Whipple, 57 Wis. 485, 14 N. W. 904 (Wis. 1883)
• Parties: EASLEY v. WHIPPLE.
• Court: Wisconsin Supreme Court

57 Wis. 485

14 N.W. 904

EASLEY

v.WHIPPLE.

Supreme Court of Wisconsin.

Filed February 20, 1883.

Appeal from circuit court, Marathon county.

TAYLOR and CASSODAY JJ., dissent.--

[STATE REP.H. H. Grace and Moses Hooker, for appellant, James S. Easley.

P. L. Spooner, L. F. Frisby, and Eldred & Bump, for respondent, Clarence F. Whipple.

COLE, C. J.

The complaint states that the land in question was sold in 1863 by Marathon county for delinquent taxes; that the county clerk, in October, 1866, executed a tax deed of the same to the county, which deed was duly recorded October 10, 1866. The county alone was named as grantor in the deed. The land was then, and always has been, wild, unoccupied, and uncultivated. The tax deed was clearly void on account of the omission of the name of the state as grantor. Section 50, c. 22, Laws 1869; Woodman v. Clapp, 21 Wis. 355;Wilson v. Henry, 40 Wis. 594. The deed being void on its face did not operate to change the constructive possession which remained in the original owner; nor was it a sufficient color of title to support the three years statute of limitations in favor of the grantee named therein. Hain v. Shepardson, 18 Wis. 59. Did the matter stop here no one would claim that the plaintiff, who holds the land by patent from the United States, was divested of his title by the tax deed. But the complaint proceeds further to state that this tract, with other lands, was conveyed in June 1867, by the officers of Marathon county, to the state of Wisconsin, by a quitclaim deed, under and pursuant to chapter 22, Laws 1867, and that the state sold and issued a patent for the tract to the defendant's grantor.

The act of 1867, it is said by the learned counsel for the defendant, was a curative statute, which operated to make valid the void tax deed by which the land was conveyed to Marathon county, and bars the plaintiff's right of action. A majority of the court are of the opinion that this view of that law is incorrect and cannot be sustained. Waiving on this appeal--as we do--all questions as to the constitutionality of that enactment, which were so ably presented on the argument, the majority think the law does not apply to this case. This act was published on the eighth of March, 1867, and may be deemed to be in force from that day. The first section authorized the clerk of the board of supervisors, in behalf of the county, to convey to the state of Wisconsin 40,540 acres of land situated in the county; the land to be taken from town 26, in the south part of the county, and extending north until the whole amount was taken, in such distinct lots or parcels, and without exception, “ as the said county shall now hold by virtue of tax deeds issued upon sales for delinquent taxes heretofore made.” The second section authorized and required the clerk to deliver over to the secretary of state, for the use and benefit of the state, all outstanding tax certificates upon the land conveyed, The lands and tax certificates were conveyed and delivered in payment of $22,271.30, delinquent state tax due and owing from Marathon county. The fourth section provided that the lands so conveyed to the state should be held and disposed of in the same manner, and upon the same terms and conditions, as swamp and overflowed lands, at the minimum price of 75 cents per acre: “provided no such lands shall be disposed of or sold until the expiration of one year from the passage of this act, at which time the said conveyance from said county to the state shall be conclusive evidence of an absolute title to said lands in the state, unless suit shall be instituted to invalidate the same within that time.”

This is all there is of this act; and it will be seen that it does not by any express...