Hazeltine v. Hewitt

• Decision Date: 23 September 1884
• Citation: Hazeltine v. Hewitt, 61 Wis. 121, 20 N.W. 676 (Wis. 1884)
• Court: Wisconsin Supreme Court
• Parties: HAZELTINE AND OTHERS v. HEWITT AND OTHERS.

61 Wis. 121

20 N.W. 676

HAZELTINE AND OTHERS

v.HEWITT AND OTHERS.

Supreme Court of Wisconsin.

Filed September 23, 1884.

Appeal from circuit court, Marathon county.

CASSODAY and TAYLOR, JJ., dissenting.James & Crosby and Moses Hooper, for appellants, Charles R. Hazeltine and others.

Carl H. Mueller and Ordway & Hoyt, for respondents, Henry Hewitt, Jr., and others.

COLE, C. J.

The learned counsel for the defendants frankly admit that the decision in Easley v. Whipple,57 Wis. 486, S. C. 14 N. W. REP. 904, controls this case, unless the fact which was admitted on the trial, that the county of Marathon, when it made its deed to the state, June 3, 1867, held no tax deeds upon the lands which were valid on their face, takes this case out of that ruling.But, after all the ability and learning which illustrated the discussion, a majority of the court are unable to perceive how that fact can or should change the construction which has been placed upon chapter 22 of the Laws of 1867.It is suggested, if that construction is adhered to in the face of the admitted fact, it then follows that there is no subject to which the act of 1867, and the deed from the county to the state, can be applied.Therefore, it is said, this presents a case of latent ambiguity in the law, where parol evidence or proof of surrounding facts and circumstances is competent to apply the law of 1867 and the deed to the intended subject.It is elementary law that, in case of wills, extrinsic evidence is received to explain an ambiguity not apparent on the face of the instrument to be construed.The same rule is applied to cases of mercantile paper, contracts, and deeds, with a view to ascertain the intention, though not to vary the contract, of the parties.

Broom.Leg. Max. p. 608, gives many illustrations where such evidence has been received on the ground that when the ambiguity itself is raised by extraneous circumstances, it may be removed in the same manner.But we are at a loss to understand how that rule can be applied in the interpretation of a law which this court has held to be plain and unambiguous.It may be true, when it was shown that Marathon county held no lands by tax deeds prima facie good, that it had no lands to convey under the law; in other words, there was no subject to which that statute applied.But what of that?Suppose it had appeared from the evidence that in June, 1867, the county held no lands by tax deeds of any kind, but owned a mass of tax certificates; would it be claimed that these certificates might or could be transferred to the state in fulfillment of the law, rather than the act should fail for want of some subject to which it could apply?Very nearly such a position was assumed by one of the learned counsel for the defendants, as we understood his argument, who contended that it was really the intent and object of the law to authorize the clerk of the county to convey certain lands to the state for the specified consideration; not simply to convey a particular kind of title, but any interest which the county had in the lands, whether held by tax deeds or not.Other counsel, on the same side, say the words “now holds by virtue of tax deeds,” which are used in the act, were an essential part of the description of the lands to be conveyed, and that no lands held under any other than tax deeds (if the county had any other) could be included in the conveyance, nor any lands for which the county might receive tax deeds after the passage of the act.These positions are not very consistent, but we will not dwell upon that subject.

We suppose we must arrive at the intention of the legisture in this, as in other enactments, from the language employed in the act itself.The law, in words of clear and precise meaning, authorizes the clerk to convey to the state the designated number of acres; the land to be taken from, etc., in such distinct lots or parcels “as the said county shall now hold by virtue of tax deeds issued upon sales of delinquent taxes heretofore made.”This is clear, plain language, and, as it seems to the majority of the court, leaves no room for construction or interpretation.Whether the legislature would have authorized and accepted a deed from the county which conveyed a title or interest other than that held by virtue of tax deeds valid on their face, it is idle to inquire.It is sufficient to say that this was the interest or title which the law of 1867 contemplated should be conveyed by the county.We therefore do not think there is any ambiguity, latent or otherwise, to be removed or explained by extrinsic facts, and such evidence is quite immaterial.True. it is said the court, in construing an act, looks at the “condition of things”--“recurs to the history of the time when it was passed.”But that consideration cannot aid the defendants' case if the act in question is clear and explicit in its terms.There is surely no evidence that the legislature in 1867 knew that all the tax deeds held by Marathon county were void upon their face and worthless to convey title.If the legislature had been cognizant of that fact, it is fair to presume it would not have passed this law.

Equally idle, as it seems to us, is the discussion as to the power of the legislature in 1867 to validate the void tax deed held by Marathon county.The legislature did not attempt to cure such defects in those deeds.“No such language will be found in the law anywhere.We therefore need not consider the question whether the legislature would have power thus to validate deeds void on their face and divest the title of the original owners.It will be a perversion of both the spirit and letter of the law to say it was intended to cure or make good a tax deed where the name of the state as grantor was omitted.”Easley v. Whipple.Finding in the record no fact which takes the case out of the ruling in Easley v. Whipple, a majority of the court adhere to the decision there made.

While a reference is made on the briefs of counsel to chapter 83,Laws 1883, no benefit was claimed for defendants under that statute.There could not well be any advantage derived from it, as it is obnoxious to several insuperable objections.After what has been said, it is hardly necessary to add that the case does not come within the limitation of section 4, which is relied on as a bar.The cause was tried by the court, a jury being waived.The court finds that the plaintiffs, at the commencement of the suit, were the owners of the original government title of the premises described in the complaint.They are entitled to recover on that title.The judgment of the circuit court is therefore reversed, and the cause is remanded, with directions to render judgment for the plaintiffs.

CASSODAY, J., dissenting.

This is an action of ejectment, commenced February 6, 1882.The plaintiffs claim title through mesne conveyances from the United States.The defendants claim title under a patent from the state, issued under the following circumstances: January 30, 1867, the board of supervisors of Marathon county and their clerk made, and soon after presented to the legislature of the state, then in session, a memorial, from which it appeared, in effect, that the county was indebted to the state for delinquent taxes in the sum of $20,271.34; that the same had been added to the apportionment of taxes against that county for the year 1866; that, instead of collecting such taxes in money, a vast amount of lands had been forfeited to the county for taxes, and that the county then held on tax titles and subject to tax deeds upwards of 150,000 acres, amounting to upwards of $100,000 of delinquent taxes, and that a great portion of said lands had not only been forfeited and deeded to the county for the delinquent taxes for one year, but, in many instances, for several years; that the county was unable to dispose of the lands for the amount for which the same was forfeited; that much of the taxes assessed on personal property had been returned delinquent by reason of the property being removed from the county; that the county was unable to pay the state the amount of such delinquent taxes, and therefore prayed to be discharged therefrom, or, in lieu thereof, that the legislature authorize the state to take enough of such lands on such tax titles, at a nominal price, or for the sum for which they were forfeited for taxes, to discharge such indebtedness.

The matter was referred to a committee of the senate, which reported to the effect that the county contained 163 townships, while its population was only 3,678; that it had been almost impossible to collect taxes in the county by reason of the non-residence of land-owners, and the property of the people, and, in consequence, large amounts of lands, had, from year to year, been forfeited to the county; that chapter 132 of the Laws of 1866 had been enacted to remedy the evil; and recommended the passage of the pending bill, (chapter22, Laws 1867,) for the reasons, among others, that it would be merely to enable the county to pay the state indebtedness in kind,--in the same currency the state had compelled the county to take, with the difference that the state would take the lands at 50 cents per acre, whereas they cost the county about 70 cents per acre, one-fourth of which were state taxes.Chapter 132,Laws 1866, referred to in the report, provided, in effect, that whenever any lot or tract of land had, for five successive years, been sold for taxes and bid in for the county, and remained unredeemed, the title thereof should absolutely vest in the county where such lot or tract of land was situated, and, when so vested, should be liable to assessment for taxes of any kind or description; and also authorized the county board to sell and convey any and all such lands.

In pursuance of that report, chapter 22 of the Laws of 1867 was adopted, and was published and went into effect March 6, 1867.The deed from...