Lombard v. McMillan

• Decision Date: 07 April 1897
• Citation: 70 N.W. 673,95 Wis. 627
• Parties: LOMBARD v. MCMILLAN ET AL.
• Court: Wisconsin Supreme Court

95 Wis. 627

70 N.W. 673

LOMBARD

v.MCMILLAN ET AL.

Supreme Court of Wisconsin.

April 7, 1897.

Appeal from circuit court, Marathon county; Samuel D. Hastings, Jr., Judge.

Ejectment by Benjamin Lombard, Jr., against B. F. McMillan and others. From a judgment abating the action, plaintiff appeals. Affirmed.

This was an action of ejectment. Plaintiff held the original title to the lands which formed the subject of the action. Defendant McMillan claimed title to such lands through mesne conveyances from Marathon county and the proceedings hereafter referred to. The lands were of the class designated as “Marathon County Lands” by section 184, Rev. St. 1878. The history of defendant McMillan's title is as follows: Prior to the conveyance to the state hereafter mentioned, the lands were tax-deeded to Marathon county by tax deeds void on their face, some for omission of the words “as the fact is,” required by statute, and some for failure to name the state as grantor. By chapter 22, Laws 1867, Marathon county was authorized to convey to the state tax-title lands, and tax-sale certificates thereon, owned by it, in payment of its delinquent dues. Pursuant to such chapter the lands in question were so conveyed June 3, 1867, and tax-sale certificates thereon owned by the county were delivered to the state. By chapter 278, Laws 1883, it was provided, among other things, as follows: “No action shall be commenced, maintained or prosecuted by or on behalf of the original owner, or any person claiming title to or under such owner to recover possession of, or in any way involving the title to any lands heretofore conveyed to the state of Wisconsin, by any county in the state, or attempted to be so conveyed and sold by said state of Wisconsin to any private party or parties, until all taxes levied and assessed upon and against the same from the date of the sale thereof by the said state, together with all legal charges for assessing and collecting the same, and interest thereon, * * * shall have been paid into the county treasury of the county in which such lands shall lie; nor until all delinquent taxes levied upon and returned against said lands and remaining unpaid when the same were so conveyed, or attempted to be, to the state together with the like interest thereon shall have been paid into such county treasury; which moneys shall be retained in said county treasury to abide the event of such action, and shall be returned to the party paying or depositing the same if he shall fail to maintain such action; otherwise, so much thereof as covers the delinquent taxes above mentioned and interest thereon at the rate aforesaid, shall be retained by such county, and the remainder shall be paid over to the party or parties purchasing the same from the state, his or their legal representatives.” Further provision was made giving plaintiffs a reasonable time to make the deposit required in actions pending at the time of the passage of the act, and for a dismissal of such actions for failure so to do. The lands in question were conveyed to George Weller in 1876, and by him conveyed to defendant McMillan in 1879. This action was commenced February 11, 1885, against McMillan only. Thereafter chapter 301, Laws 1885, was passed, authorizing the state to take tax deeds upon Marathon county lands, where it held certificates, subject to such deeds, delivered to it by Marathon county under the act of 1867; also, to take tax deeds valid in form in place of invalid tax deeds, under which the county claimed title at the time the lands were conveyed to the state pursuant to such act. Such chapter provided as follows: “Such deeds shall vest in the state an absolute estate in fee simple in the lands therein described, and shall be presumptive evidence of the truth of the recitals in such deeds contained, and of the regularity of all the proceedings from the valuation of the lands by the assessor, up to and including the execution of the deeds. * * * Such tax deed or deeds * * * shall be conclusive evidence of absolute title to said lands in the state, unless * * * adjudged to be void in some action now pending, or which shall be brought within nine months after the recording of such tax deed or deeds to which the state shall have been made a party.” The act further provided for making the state a party defendant in pending actions. In September and December, 1885, new tax deeds were taken by the state under the aforesaid act. By chapter 74, Laws 1889, it was provided, in effect, that the title acquired by the state under deeds taken pursuant to the act of 1885 to lands conveyed to private persons before the taking of such new deeds should inure to the benefit of such persons. The complaint was in the usual form. Defendant McMillan answered by a general denial. In 1893 McMillan applied to the court to have the state made a defendant, pursuant to the act of 1885. Such motion was granted, and plaintiff excepted thereto. Such proceedings were thereafter had that the state answered, setting forth the facts respecting the title under which defendant claimed the lands, and pleaded, in abatement of the action, noncompliance by plaintiff with the law requiring deposit of the amount of unpaid taxes with the county clerk as a condition precedent to the commencement of the action. Judgment was demanded abating the action on that ground, and for costs and disbursements. The case was tried before the court. The facts were found in defendants' favor as set forth in the plea in abatement. Judgment abating the action was ordered, and entered accordingly. Exceptions were duly filed, and plaintiff appealed.

Brown & Pradt, for appellant.

Silverthorn, Hurley, Ryan & Jones and W. H. Mylrea, Atty. Gen., for respondents.

MARSHALL, J.

There are several questions presented on this appeal proper for consideration, some necessary and some not. This opinion will not be confined strictly to those necessary.

1. It is contended on the part of the appellantthat chapter 278, Laws 1883, for failure to comply with which the trial court decided that the action was prematurely brought and should be abated, is unconstitutional and void under article 1, § 9, which provides that “every person is entitled to a certain remedy in the laws, for all injuries or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.” A large number of decisions are brought to our attention from other states to show that statutes there which require the payment of illegal taxes as a condition precedent to the right to institute an action to avoid taxes, or tax deeds based thereon, offend against this constitutional safeguard; but such adjudications do not apply here. The act in question does not require the former owner of lands, as a condition for bringing an action to void an illegal tax deed based thereon, to part absolutely with anything, but only as an earnest of good faith that he will finally abide by the decision of the court respecting the payment of legal taxes that may be determined to be equitably chargeable to the lands requires the deposit mentioned in the act. The essential principle involved has been repeatedly challenged in this court, and as often sustained. Flanders v. Town of Merrimack, 48 Wis. 567, 4 N. W. 741;Wakeley v. Nicholas, 16 Wis. 588;Smith v. Smith, 19 Wis. 615;Finney v. Ackerman, 21 Wis. 268;Knight v. Barnes, 25 Wis. 352;Philleo v. Hiles, 42 Wis. 527. In both legal and equitable actions, legislation requiring a deposit of taxes, void simply on the ground of irregularities, but not inequitable, as a condition of recovery, has been sustained, as the cases referred to abundantly show. In Lombard v. Antioch College, 60 Wis. 459, 19 N. W. 367, the act in question was challenged, the contention being made now pressed upon the attention of the court,--i. e. that the requirement to deposit taxes equitably chargeable to land as a condition of recovery in an action to avoid a tax deed based thereon cannot be extended so as to require the deposit of taxes on lands paid by the tax title claimant as a condition precedent to the right of the former owner to institute an action to avoid such tax or a deed based thereon; and in respect thereto this court decided, in effect, that chapter 278, Laws 1883, cannot be held unconstitutional because it requires the plaintiff to deposit the taxes which have been paid on the lands by the party claiming the same as a condition of his right to maintain an action to avoid a tax title based thereon, under which the party claims who has paid such taxes, without substantially overruling the decisions of this court holding that such deposit may be required after the action has been...