Johnson v. Pofahl

• Decision Date: 02 June 1953
• Citation: 58 N.W.2d 648,264 Wis. 215
• Parties: JOHNSON et al. v. POFAHL et al.
• Court: Wisconsin Supreme Court

Page 648

58 N.W.2d 648

264 Wis. 215

JOHNSON et al. v.POFAHL et al.

Supreme Court of Wisconsin.

June 2, 1953.

Harold M. Bode, Kenosha, for appellants.

Hammond & Hammond, Kenosha, for respondents.

BROADFOOT, Justice.

Several rules as to the effect and validity of tax deeds are cited by the plaintiffs.They are not disputed and need not be discussed.The only question to be determined in this case is whether the plaintiffs' action is barred by sec. 75.26, Stats., which reads as follows:

'Limitation.(1) Grantee in Deed.No action shall be maintained by the grantee or any one claiming under him to recover the possession of any land or any interest therein which shall have been conveyed by deed for the nonpayment of taxes unless such action shall be brought within three years next after the date of the execution of such deed; or if such land demanded shall be, when so conveyed, vacant and unoccupied and so remain, unless such action be brought within three years next after the date of the recording of such deed, or unless such grantee or those claiming under him shall have been in actual, not constructive, possession of the land so demanded for three successive years during the five years next after the recording of such deed; provided, however, that if the former owner takes possession of any such land at any time within three months of the expiration of three years from the date of the execution of such deed, then and in such case the grantee in such tax deed or those claiming under him may bring and maintain an action to recover possession of said land at any time within three months next after the expiration of said three years.'

The following section, 75.27, provides that a former owner, or any person claiming under him, must commence an action to recover possession of land which has been conveyed by deed for the nonpayment of taxes within three years from the recording of the tax deed.These statutes have been in force without substantial change since 1880.The cases thereunder have treated them as statutes of limitations.Said cases have been between grantees in tax deeds or persons claiming under them, and original owners of the tax delinquent lands or persons claiming under them.

In the case of occupied lands, the statute has been held to extinguish the tax title of the claimant thereunder who has not asserted his rights by excluding the original owner or by commencing an action to obtain possession within the three years, and it has extinguished the rights of the former owner if the tax title claimant becomes adversely possessed of the land within the three years and such owner fails to assert his rights by regaining possession or commencing an action therefor within such period.The purpose of the statutes is to fix the status of the title after giving each interested person sufficient time in which to establish his claim.The statutory limitation has operated to divest the title of either the tax deed grantee or the former owner, depending upon which party was under the necessity of resorting to legal proceedings, and it has had the effect of vesting corresponding rights in the adverse claimant.

The plaintiffs cite the case of Gunnison v. Hoehne, 18 Wis. 268.In that case the grantee in a tax deed recorded May 11, 1859, commenced an action of ejectment on July...