Land & River Improvement Co. v. Bardon

• Decision Date: 11 March 1891
• Citation: 45 F. 706
• Parties: LAND & RIVER IMP. CO. v. BARDON.
• Court: U.S. District Court — Western District of Wisconsin

45 F. 706

LAND & RIVER IMP. CO. v. BARDON.

United States Circuit Court, W.D. Wisconsin.

March 11, 1891

Pinney & Sanborn, (F. W. Downer, Jr., of counsel,) for complainant.

W. F Bailey, (Silverthorn, Hurley, Ryan & Jones, of counsel,) for defendant.

BUNN J.

This suit in equity is brought under a provision of the statute of Wisconsin, (section 3186,) the complainant being in possession of land, to bar the title of the former owner, and compel him to release. The provision is this:

'Any person having the possession and legal title to land may institute an action against any other person setting up a claim thereto, and, if the plaintiff shall be able to substantiate his title to such land, the defendant shall be adjudged to release to the plaintiff all claim thereto, and to pay the costs of such action, unless the defendant shall, by answer, disclaim all title to such land, and give a release thereof to the plaintiff, in which case he shall recover costs, unless the court shall otherwise order. It shall be sufficient to aver in the complaint in such action the nature and extent of the plaintiff's estate in such land, describing it as accurately as may be, and that he is in possession thereof, and that the defendant makes some claim thereto, and to demand judgment that the plaintiff's claim be established against any claim of the defendant, and that he be forever barred against having or claiming any right or title to the land adverse to the plaintiff,' etc.

There can be no doubt that this statute constitutes a considerable enlargement of the ordinary equitable action to quiet title to land and to remove a cloud; and it is seriously contended by the defendant that the remedy so provided cannot be available to suitors in these courts, being an innovation upon the settled rules of equity jurisdiction in such cases. But this contention can hardly be sustained. It is well enough settled that where the statute of a state enlarges a remedy in equity, or creates a new one, not inconsistent with the fundamental principles of equity jurisprudence, such remedy is open to suitors in the United States as well as in the state courts. This question was decided by the United States supreme court in Holland v. Challen, 110 U.S. 15, 3 S.Ct. 495, under a similar statute in Nebraska. Indeed the Nebraska law was a much greater innovation than the statute in question, as it gave the action to the supposed owner whether in actual possession or not; thus, in a large degree taking the place of an action of ejectment. Again, in Reynolds v. Bank, 112 U.S. 405, 5 S.Ct. 213, a similar question was before the supreme court, and this general principle recognized that, while it may be conceded that the legislature of a state cannot directly enlarge the equitable jurisdiction of the circuit courts of the United States, nevertheless an enlargement of equitable rights may be administered by the circuit courts as well as by the courts of the states. The same principle was recognized and enforced by the same court in U.S. v. Wilson, 118 U.S. 86, 6 S.Ct. 991, and in Chapman v. Brewer, 114 U.S. 158, 5 S.Ct. 799. In the last case a Michigan statute came in question of the same tenor and substance as the one under which this suit is brought.

The controversy relates to the title to a quarter section of land in Douglas county, in this state, to-wit, the S.E. 1/4 of section 28, in township 49 N., of range 14 W. The complainant relies upon two tax-deeds issued to Hiram Hayes, the complainant's grantor, one dated September 5, 1870, for the tax of 1866, recorded September 7, 1870, and the other issued on January 1, 1882, and recorded on January 3, 1882. The defendant relies upon the title of the original owner of the land, one James D. Ray, who conveyed it to James Bardon by release or quitclaim on March 6, 1878, who again conveyed it to the defendant on January 7, 1887, for a nominal consideration. The case turns upon the validity of these tax-deeds. If either is a valid tax-deed, it is quite evident from the lapse of time that the statute of limitations has run upon it, that the original owner is barred, and that the complainant's title is good. It is something over 30 years since the original owner, or those claiming under him, has paid any taxes on the land. On the contrary, the complainant and its grantor, Hiram Hayes, have paid the taxes since the issuing of the first tax-deed. The complainant paid Hayes for the land on June 2, 1883, $6,400, and took a warranty deed of conveyance, and has paid the taxes ever since. The evidence shows that it had expended on the land up to 1890, including the taxes of 1889, something over $12,500. James Bardon testifies that he paid Ray for his quitclaim deed $100, 'and perhaps more,' and conveyed to the defendant his interest without money consideration. The defendant relies upon showing that the two tax-deeds under which the complainant holds are void on their face, and therefore that the statute of limitations did not run upon them.

The principal objection made to the elder tax-deed is that the record is void from not being properly indexed, as the statute requires, and this I believe to be the principal question in the case. If that record is a valid record, and the tax-deed a valid deed on its face, then it follows that the statute of limitations has run upon it as against the former owner and his grantees, so as to prevent any inquiry into the regularity of the proceedings on which such deed is founded. The record itself is prima facie evidence of the regularity of the tax proceedings, but after the statute has run this presumption becomes conclusive. Of course, if no tax was ever levied, or if levied by incompetent authority, which is the same thing, or if the tax has been paid, in such cases the recording of the tax-deed fair on its face does not preclude inquiry into these fundamental questions, which go to the existence of the tax itself. In such case the statute of limitations does not apply. But barring these questions, which, to my mind, are not to any extent for consideration in this case, the recording of a tax-deed valid on its face precludes any inquiry into the validity of the deed or the regularity of the tax proceedings after the lapse of three years, and makes the title under the tax-deed absolute. Such has been the settled law of Wisconsin since the limitation law of 1859 was enacted. The defendant claims that the deed itself, as recorded in extenso on the record, is void, because it shows that a quarter section of land was assessed and sold as one tract. But there has never been any such requirement in the statute as claimed for by defendant's counsel. By the statute the land is to be assessed and sold in separate tracts. One man's farm cannot be assessed and sold with that of another man's farm, nor can two distinct tracts, not adjoining, belonging to the same person, be assessed and sold in one lump or parcel. But there is no requirement that a tract of land like a section or quarter section all belonging to the same person, shall be assessed and sold by the smallest governmental divisions, which is that of 40 acres. It has been the custom always in this state to assess a piece of land of the same general character, contiguous, and all belonging to the same person, in one tract, without subdivision, whether a 40 or 80, a quarter section, a half section, or a section. A quarter section of land is itself a separate parcel, just as much as a 40 acre tract, and has been so regarded and assessed from the earliest period. It is so recognized by the statute. As early as in 1849 the statute, in giving the form for the assessment of lands, recognizes these governmental divisions of land into sections, half sections, quarter sections, 80-acre tracts, and 40-acre tracts. The same divisions are recognized again in the Revision of 1858, and in Taylor's Statutes of 1871. Chapter 154, Laws 1869, (section 1048, Rev. St. 1878,) provides that no assessment of real property which has been or shall be made shall be held invalid or irregular, for the reason that several such tracts or parcels of land have been assessed and valued together as one parcel, and not separated, when the same are contiguous and owned by the same person at the time of the assessment. This provision, in terms, applies to assessments made previous to the passage of the act, as well as after, and similar provisions have been held valid by the supreme court. See Meade v. Gilfoyle, 64 Wis. 18, 24 N.W. 413; Smith v. Cleveland, 17 Wis. 556; Selsby v. Redlow, 19 Wis. 17; Ehle v. Brown, 31 Wis. 405. But there is no need for the complainant to invoke the aid of this statute in this case, as here the quarter section assessed as one tract was undoubtedly such within the meaning of the law. The decisions in other states are quite conclusive on this subject. See Martin v. Cole, 38 Iowa, 141; Corbin v. De Wolf, 25 Iowa, 125; Bulkley v. Callanan, 32 Iowa, 461; Weaver v. Grant, 39 Iowa, 295; Pettus v. Wallace, 29 Ark. 486; Cooley, Tax'n, 403; People v. Culverwell, 44 Cal. 620; People v. Morse, 43 Cal. 534; Spellman v. Curtenius, 12 Ill. 409; Barnes v. Boardman, 149 Mass. 106, 21 N.E. 308; Sanborn v. Mueller, 38 Minn. 27, 35 N.W. 666.

There are no other objections to the deed itself as recorded that I care to consider. It seems to be fair and valid in all respects on its face.

The principal contention is in regard to the index to the main record. This, it is claimed by the defendant, is insufficient and void, and therefore that the deed was never recorded. To appreciate the significance of this contention it should be noted that a tax-deed in this state has no validity unless recorded. The law also provides that the register of deeds shall keep an index of...