Land & Loan Co. v. Kesler

• Decision Date: 04 June 1912
• Citation: 150 Wis. 283,136 N.W. 625
• Parties: LAND & LOAN CO. v. KESLER.
• Court: Wisconsin Supreme Court

150 Wis. 283

136 N.W. 625

LAND & LOAN CO.

v.KESLER.

Supreme Court of Wisconsin.

June 4, 1912.

Appeal from Circuit Court, Langlade County; John Goodland, Judge.

Action by the Land & Loan Company against Mary Kesler. Judgment for defendant, and plaintiff appeals. Affirmed.

Action by tax title claimant to bar former owner. The foundation of plaintiff's title was a certain tax deed executed by Oneida county February 27, 1905, based on the sale of 1901. One of the issues litigated on the trial was whether or not such deed was void on its face. It reads in part as follows: “Whereas, the Land & Loan Company, assignee of T. W. Hogan, and the Land & Loan Company, assignee of Oneida county, has deposited in the office of the county clerk of the county of Oneida, in the state of Wisconsin, eight certificates of R. M. Douglass, the county treasurer of said county, whereby it appears (as the fact is) that the following described pieces or parcels of land lying and being in the county of Oneida, to wit (here follow descriptions of eight parcels), were for the nonpayment of taxes separately sold by R. M. Douglass, the said county treasurer of said county, at public auction, at Rhinelander, in the county of Oneida, Wisconsin, on the 21st day of May in the year of our Lord one thousand nine hundred and one to the said T. W. Hogan and Oneida county, for the sum of $44.02 in the whole; which sum was the amount of taxes assessed and due and unpaid on said (several) tracts of land, together with the costs and charges of such sale, due therewith at the time of making such sale, the whole of which sum of money has been paid by the aforesaid purchasers.”

The answer averred among other things that the premises were a government homestead; that the defendant and her deceased mother had been in the actual and continuous possession of same from 1896 to the time this action was begun; and pleaded section 1187, Stats., as a bar to the action. The court found, upon the evidence introduced by the respective parties upon the issue as to occupancy, in favor of the defendant, held the tax deed was void on its face, and entered judgment dismissing plaintiff's complaint with costs, from which it appealed.Smart, Van Doren & Curtis, for appellant.

T. W. Hogan, for respondent.

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

Plaintiff claims (1) that there is no evidence to sustain the finding of such occupancy by the defendant within three years after the recording of the tax deed as to defeat the statute of limitations from running in its favor as to any of the three 40-acre tracts; (2) that, if there is such evidence, it is limited to only one 40-acre tract and cannot affect the other two; and (3) that the court erred in holding the tax deed void on its face.

It appears that in 1894 William Weenink, the father of the defendant, entered three contiguous 40-acre tracts as a homestead; that he continued to improve and occupy the land as a homestead until on or about the 16th day of November, 1896, when he died intestate, leaving his widow, Minnie Weenink, and this defendant, as his only heirs at law. Thereafter the widow, by the aid of Anthony Weenink, her brother-in-law, continued to improve the homestead until she made final proof thereon some time during the year 1899. A patent duly issued to her February 25, 1901. The land was assessed for taxes during the year 1900, and plaintiff purchased the certificate upon which the tax deed in question is based at the tax sale of 1901. In 1907 a forest fire swept over the premises and destroyed all the buildings thereon, since which time there is no claim that they have been occupied. Upon the question of occupancy, the defendant testified that she was on the premises last in 1906; that there was then a crop of timothy hay on the clearing, and that it looked good to her; that she was there in 1904 and in 1905 also; that in 1905 a crop of rye was put in; that in that year the clearing was seeded down; that in 1904 the clearing had a crop of potatoes, rutabagas, and turnips; and that after 1905 it was in rye, hay, and timothy; also that she picked berries on the land in 1905 and in 1904.

Anthony Weenink testified in substance that he worked the place after Mrs. Weenink proved up and got her patent; that he kept on working it in the same way after she got the patent as he did prior to that time; that he did so at her request from 1901 up to the time of her death in 1907. He said there was a house, barn, stable, shed, and hayshed on the premises; that a few of Mrs. Weenink's tools, bedding, and furniture were there. In 1905 and 1906 he cut and harvested the crops. Four or five acres were cleared of stumps, and some more partly cleared. It also appears that the defendant and her predecessors in title paid taxes on the land for each year from 1901 to the time of the commencement of this action, and that none of them knew of the outstanding tax title until a short time before the action was begun. It also appears that the mother of defendant had the land surveyed and lines run out in 1906 and again in 1907, and during those years had the timber estimated on the land, and that some marsh hay was cut on the forties besides the one on which the improvements were located.

Three witnesses on behalf of plaintiff testified as to occupancy. One Reitz said he first saw the land in 1909; that he was sent there by plaintiff to look it over; that he saw the remains of a house and evidences of a former clearing, but in his opinion the same had not been cultivated for seven or eight years. Joe Gauthier, a fisherman living near Pelican Lake, testified that he had lived within about a quarter of a mile from this land for about six years; that so far as he knew there had been no cultivation of the clearing at any time after the year it was proved up. It is apparent from the testimony, however, that he thought final proof was made in 1907, for he seems to be of the impression that it took place in the same year the forest fire occurred. At best his evidence is of little value, and it is only to the effect that, so far as his knowledge goes, he thinks there was no cultivation of the...