Hewitt v. Week

• Decision Date: 29 January 1884
• Citation: 59 Wis. 444,18 N.W. 417
• Parties: HEWITT, JR., AND ANOTHER v. WEEK AND ANOTHER.
• Court: Wisconsin Supreme Court

59 Wis. 444

18 N.W. 417

HEWITT, JR., AND ANOTHER

v.WEEK AND ANOTHER.

Supreme Court of Wisconsin.

Filed January 29, 1884.

Appeal from circuit court, Marathon county.

Ejectment to recover certain lands in Marathon county, which were conveyed to that county by two tax deeds, regular on their face, each dated December 21, 1867. The plaintiffs are the grantees of the county. Such deeds were copied upon the records in the office of the proper register of deeds, but at what time does not appear. Probably they were left for record soon after their execution. They were not entered in any index of recorded instruments until May 24, 1881. This action was commenced January 17, 1879. The complaint is in the statutory form. The defendants answered--(1) a general denial; (2) that they are the owners of the land claimed. On the trial the plaintiffs proved the above-mentioned conveyances. They also introduced a tax deed of the land in controversy duly executed to the defendants, which deed bears date June 7, 1878, and was recorded in the proper register's office on the same day. This deed was offered to show ouster, and was followed by evidence tending to show that it was void. The cause was tried by the court (a jury having been waived) and resulted in a judgment for the plaintiffs.

The findings of fact and conclusions of law are as follows: “(1) The plaintiffs are the owners of the lands described in plaintiff's complaint; (2) they are entitled to the possession thereof; (3) the defendants, by their answer, claim title to said lands and the right of possession thereto; (4) the defendants also claim title to said lands and the right of possession thereto by virtue of a certain tax deed, referred to in their answer, which said tax deed was duly recorded in the office of the register of deeds for Marathon county, and which said tax deed was based upon sale of taxes by the said county of Marathon for the year 1874, of the town of Wein, in said county, but the court further finds that said deed is null and void, for the reason that the assessment roll of said town of Wein for said year 1874, and upon which said tax was levied, was not accompanied by the affidavit required by law by assessors to be fixed to their several assessment rolls.”

As conclusions of law, the court then found: “(1) That the title to the premises described in the complaint in this action is in the plaintiffs; (2) that plaintiffs are entitled to recover possession of the premises in the complaint in this action, described from the defendants, and to recover from the defendants one cent damages thereof; (3) that plaintiffs are entitled to an immediate judgment herein and to have the same entered and docketed.”

The defendants appeal from the judgment.

TAYLOR, J., dissents.David S. Ordway and Carl H. Mueller, for respondents, Henry Hewitt, Jr., and another.

James & Crosby, for appellants, N. A. Week and another.

LYON, J.

It is conceded that the record shows the lands in controversy are vacant and unoccupied, and have been in that condition from the time the tax deeds under which the plaintiffs claim title were issued. We shall determine the case on that basis without looking critically into the record to ascertain whether it supports the concession. In Lombard v. Culbertsen, ante, 399, we hold that the tax deeds were not recorded until properly indexed. They were not so indexed until more than two years after this action was commenced. Hence, those deeds were not of record when the action was brought. The question to be determined is whether the plaintiffs, claiming under such unrecorded tax deeds alone, may maintain ejectment against the grantee in a subsequent recorded tax deed of the same lands regular on its face, but which is claimed to be void. By taking the tax deed and placing it upon record, the defendants claimed a title to or interest in the lands claimed, which, if the deed is valid, entitles them to the possession thereof. Under the ruling of this court in Pier v. Fond du Lac, 38 Wis. 470, this, and this only, is such a claim of title as makes them proper defendants in an action to recover the lands, brought by the proper plaintiff.

This brings us to consider whether the plaintiffs can maintain this action. It was held in Pier v. Fond du Lac, that the action of ejectment under our statute is still a possessory action, as at the common law, and that it is essential to the maintenance of the action that the plaintiff has a present right to the possession of the land claimed. The test question is, therefore, were the plaintiffs entitled to the possession of the land in controversy when this action was commenced? To resolve this question intelligently, it is necessary to determine the nature and qualities of the plaintiffs' title to or interest in the lands claimed under the unrecorded tax deeds. The law in force when those deeds were executed is chapter 22, Laws 1859. Under section 18 the original owner of the land might redeem from a tax sale at any time before the tax deed executed upon such sale was recorded. Section 25 provides that a tax deed regularly issued “shall vest in the grantee an absolute estate in fee-simple in such lands, subject, however, to all unpaid taxes and charges which are a lien thereon, and to redemption, as provided in this act.” These sections are retained in the present Revised Statutes, and stand as sections 1165 and 1176, respectively. Under these provisions the original owner of the lands in controversy had a right to redeem from the tax sales; that is to say, he had an equity of redemption in such lands when this action was commenced. This right in the original owner is incompatible with an absolute estate in fee-simple in the tax-deed grantee, and the statute does not attempt to confer such estate upon him. It may confer upon him a title in fee-simple, but that is conferred subject to the original owner's right of redemption. It is an estate subject to an equity of redemption by the express terms of the statute. At most, a mere conditional fee passed by the unrecorded tax deeds, while, with that exception, the interest of the original owner in the land remained substantially as it was when the tax lien was evidenced by the certificates alone.

The estate which vested under the tax deeds before they were recorded, is, we think, the same as that of a mortgagee under a common-law mortgage which passed the legal title to the mortgaged premises to the mortgagee, leaving only an equity of redemption in the mortgagor. Yet such interest was an estate in the lands which the mortgagor might sell or devise, or which might be sold on execution for his debt. It was a freehold estate, which descended to the heir as real estate upon the death of the mortgagor, intestate, and his widow was entitled to dower therein. 1 Jones, Mortg. § 15. Whatever rule may have prevailed on the subject in former times, and notwithstanding some more modern decisions to the contrary, we think the present rule on the subject, where the common-law rule prevails, is that the mortgagee cannot maintain ejectment against the mortgagor to recover the mortgaged premises until after default in the payment of the mortgage debt. Until default, the mortgagor is entitled to the possession.

In the case of an unrecorded tax deed, the original owner, against whom, presumably, the taxes were assessed, is not, in any correct sense of the term, in default to the grantee in the tax deed. He has not promised to pay any sum to such grantee, and no statute has commanded him to do so. It is entirely optional with him to redeem his lands or not. True, he was once in default to the government for non-payment of the taxes assessed upon his land, which the statute required him to pay. But he was relieved from that default by the sale and conveyance of his land, which discharged his obligation to the government. There was never a time when such grantee could truthfully say that the original owner was his debtor on account of such taxes or tax deeds, and hence there was never a time when the original owner was in default as to him. The plaintiffs held the legal title to the lands claimed by them as security for the payment of the sum which the grantee in the tax deeds paid therefor, and interest thereon, if the original owner should elect to pay the same. That right of election and the estate of such original owner subsisted when this action was brought. That it is the policy of our law to give the right to the possession of lands so held to the owner of the equity of redemption is manifested by the statute which provides that “no action of ejectment for the recovery of mortgaged premises shall be maintained by a mortgagee, his assigns, or representatives.” Rev. St. p. 805, § 3095; Rev. St. 1858, c. 141, § 28. Considering the nature and incidents of the estate of the original owner, in the lands claimed when the action was brought, and having due regard to the policy manifested by the above legislation, it must be held that the plaintiffs, when they brought this action, had no right to the possession of the lands they seek to recover, and hence cannot maintain the action. The owner of the equity of redemption was then in constructive possession of the lands, or (what is the same thing where the lands are not actually occupied) he was entitled to the possession thereof; and until the tax deeds were recorded, he, and he only, could maintain the action.

The conclusion we have reached renders it unnecessary to consider whether the defendants' tax deed was or was not effectually impeached.

The judgment of the circuit court must be reversed, and the cause remanded for further proceedings in accordance with this opinion.

TAYLOR, J., dissenting.

It is held, in the opinion of the court in this case, that a person holding an unrecorded tax deed upon a parcel of land has no such interest in or title to the land described therein as will enable him to maintain ejectment...