Laffitte v. City of Superior

• Decision Date: 22 February 1910
• Citation: 125 N.W. 105,142 Wis. 73
• Parties: LAFFITTE v. CITY OF SUPERIOR.
• Court: Wisconsin Supreme Court

142 Wis. 73

125 N.W. 105

LAFFITTE

v.CITY OF SUPERIOR.

Supreme Court of Wisconsin.

Feb. 22, 1910.

Syllabus by the Judge.

In respect to occupied property affected by a tax deed, the statute of limitations acts like a two-edged sword. It cuts both ways, operating in favor of the possessor “to bar the title of whichever party--the original owner, or the tax title claimant--was, during the three years next after the recording of the tax deed, under the necessity of resorting to legal proceedings to obtain possession.”

The nature of possession necessary to set the statute of limitations running either way, in respect to a tax deed, is the same as required to constitute adverse possession by a person claiming title founded upon a written instrument.

The rule last above does not require the possession to have all the characteristics mentioned in section 4212, St. 1898, but there must be that complete dominion over the property, appropriate to ownership of such property similarly situated, by acts sufficiently significant and continuous to reasonably inform the adversary, if he pays reasonable attention to his affairs, that his right is defied.

Merely exercising some rights of ownership by one of two adversaries, the other not being in fact dispossessed so as to render the possession of that one not only hostile and notorious but exclusive, is not sufficient.

Merely surreptitiously obtaining recognition by a tax deed claimant as landlord, from a tenant of the former owner who continues in possession under such circumstances as to reasonably induce such owner to rely upon the former relations of landlord and tenant continuing, does not work any change of possession so as to turn the statute of limitations from running against the tax deed to running in its favor.

Taking actual possession of a portion of one lot in an inclosed platted block, under a tax deed covering the entire block, leaving another portion of the block in actual possession of the former owner by his tenant, residing thereon, and doing no act as to the balance of the block but surreptitiously obtaining from the tenant recognition as landlord, the former owner appropriating and using the balance of the block, as before--does not change the running of the statute of limitations so as to favor the tax deed title, except as to that part of the land actually occupied by the invader.

After the status shall have been fixed, as before stated, of actual occupancy of part of the inclosed block by the invader and such occupancy of part by the tenant of the former owner, whether acts of ownership by such owner which actually as to the balance of the block, are unknown to the tax title claimant, is immaterial, so long as they are open and notorious.

A tax deed claimant having induced the former owner's tenant in possession to take from him a lease of the property, the ostensible lessees continuing in possession as before without any apparent change of attitude toward the former owner, evidence of a declaration by the tenant to such owner denying any relations with such claimant recognizing him as landlord, is competent on the question of knowledge of such owner of attornment by such tenant to such claimant.

When a statute of limitations shall have fully run against a right, the same is extinguished and a new right created of equal dignity with the one destroyed, as regards constitutional protection.

When the right of a tax title claimant shall have been extinguished by the statute of limitations, a right is created in favor of the real owner to have the cloud upon the title created by the record of the tax deed, and of any subsequent deed referable thereto, removed and, incidentally thereto, a right exists to an appropriate remedy in that regard, unburdened by any equity in favor of the one whose rights have ceased to exist to refund taxes paid or to compensate for tax liens acquired by him.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Action by H. E. Laffitte against the City of Superior. Judgment for defendant, and plaintiff appeals. Reversed and remanded for judgment in plaintiff's favor.

Action to quiet title. The pleadings were in the usual form presenting the question of whether the claimants of the land in controversy, as possessors of the patent title, had been in possession of such land during the three years succeeding the execution of the tax deed, under which defendant claimed, so as to extinguish by force of section 1188, St. 1898, the latter title, or defendant took possession of the premises under the tax deed title and held the same adversely to the original owner during the three years succeeding the recording of such deed so as to, under such section and section 1187, extinguish the original title.

The following facts were undisputed and found accordingly: The holder of the original title did not pay the tax assessed on the property after 1891. In due form taxes were levied thereon each year and returned delinquent. In 1905, by tax deeds, fair on their face, based on a sale of the property for delinquent taxes, the property was conveyed to Douglas county, and February 17, 1906, the tax title, by a deed in due form, was conveyed to the defendant. The property consisted of 10 lots in the platted portion of Superior city, Douglas county, Wis., known as block 69. On lots 1 and 10, forming the westerly side of the block, there was a dwelling house and a barn which existed during all the period herein mentioned and for a long time prior thereto. The block was inclosed by a fence. In 1902, the plaintiff and another, who then represented the original title, leased lots 1 and 10 and the buildings thereon to one McCloud who resided thereafter thereon, as a tenant, till the time of the trial. He agreed to pay rent at the rate of $2.50 per month and paid some thereof at irregular intervals. Some time after he took possession and before the date of the tax deed, the tenant, at the request of the landlords, repaired the fence making it a substantial inclosure of the block. In February, 1907, defendant took down the fence at the rear of lot 5 sufficiently to enable it to move a building onto the back part of such lot, the building being placed thereon for the purpose of taking possession of the entire block under the tax deed title. Defendant used the building for election purposes twice each year thereafter but did no other acts of ownership on the block except, in March, 1907, it procured McCloud to sign a lease, he, in form, thereby becoming its tenant of lots 1 and 10 at a monthly rental of $3. Plaintiff acted in concert with another, they together representing the original title to the whole block. During all the time of dealing with McCloud as tenant under the holder or rightful representatives of the original title, the actor in the matter was plaintiff's associate. Plaintiff became possessed of the entire original title subject to the tax title before the commencement of this action. He and his associate knew of the delinquent taxes, the execution of the tax deed, the placing of the building on lot 5 and claim of defendant under the tax deed, substantially as the events occurred, but there is no direct evidence that they knew of the claimed relations of landlord and tenant between McCloud and defendant.

The court found these additional facts: Neither plaintiff nor his associate, representing the original title, collected or demanded any rent of McCloud after the building was placed on lot 5, or thereafter exercised any act of ownership over any part of the block, except some grass was cut under the direction of one of them but without defendant's knowledge that the cutting was under such direction. Defendant's officers had every reason to believe from the time the building was placed on lot 5 till long after the tax deed was more than three years old, that the holder of the original title had, as the fact is, abandoned the property. McCloud did not occupy any part of the block except the two lots covered by his lease, or do anything with reference to the same other than to repair the fence as aforesaid and to occasionally pasture his cow on the vacant lots. Defendant had actual possession of all of the block from the time it placed the building on lot 5 till the commencement of this action.

On the facts so found the court concluded that the original title was fully superseded by the tax title and the statute of limitations relied on by defendant and rendered judgment accordingly.D. E. Roberts, for appellant.

Thos. E. Lyons and T. L. McIntosh, for respondent.

MARSHALL, J. (after stating the facts as above).

It seems to be conceded, as the fact is, that unless respondent under its tax deed title, within the three years after the recording of such deed, took adverse possession of that part of the block in question not occupied by its building, and held such possession until the termination of such period, then as to that portion, not so adversely possessed, the statute of limitations ran in favor of the original title extinguishing the tax title, leaving only the deed, as to the latter, a cloud on the record as to the former title, rendering it competent for plaintiff to maintain an action to remove such cloud. The law is well settled as to that.

The statute of limitations acts both ways. In case of occupied lots it extinguishes the tax title of the claimant thereunder, who does not assert his right by excluding the original owner or commencing an action to obtain possession within the three years, and it extinguishes the right 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 right by regaining possession or commencing an action therefor within such period. Edgerton v. Bird, 6 Wis. 527, and note, 70 Am. Dec. 473;...