McMillan v. Wehle

• Decision Date: 31 October 1882
• Citation: McMillan v. Wehle, 55 Wis. 685, 13 N.W. 694 (Wis. 1882)
• Parties: MCMILLAN AND OTHERS v. WEHLE AND ANOTHER.
• Court: Wisconsin Supreme Court

55 Wis. 685

13 N.W. 694

MCMILLAN AND OTHERS

v.WEHLE AND ANOTHER.

Supreme Court of Wisconsin.

Filed October 31, 1882.

Appeal from circuit court, La Crosse county.

This is an action of ejectment to recover a lot in La Crosse.The defendants claim title under a deed executed by the original owner in December, 1878.The plaintiffs claim title by virtue of 10 years' possession, commencing in April, 1860, under a tax deed void on its face, issued to Alexander and John McMillan, and recorded August 6, 1856.Prior to April, 1860, the lot was vacant, unfenced, and unoccupied.Alexander and John McMillan took possession under the tax deed in April, 1860, and built a fence across the front and also across the rear of the lot, which, with the fences each side of the lot previously built by the owners of the adjoining lots respectively, completely inclosed the lot in question; that the said lot was plowed and cropped by the McMillans during the year 1860, and they continued to so occupy and cultivate the same until they leased it to one Tuttle, who went into possession of the lot under them, and agreed to pay them $18 a year rent and the taxes, and thereupon moved a house on the lot and occupied the same as a residence until about 1876 or 1877.The court directed a verdict for the plaintiffs, and from the judgment entered thereon this appeal is brought.Cameron, Losey & Bunn, for respondents.

Fruit & Brindley, M. P. Wing, and G. C. Prentiss, for appellants.

CASSODAY, J.

Notwithstanding the facts stated are undisputed, it is urged that the question of possession should have been submitted to the jury.In support of this we are referred particularly to the testimony of Daniel Cameron, from which it appears in effect that he had, during the time in question, claimed title to the land, and supposed that Tuttle went onto the lot under him, and for some of the years paid the taxes.But the mere conversation between Daniel Cameron and Tuttle could in no way affect the adverse possession thus held by McWilliams.They continued to hold until Tuttle went into the possession under them.The bill of exceptions does not show that there was anything said in that conversation which tended to disprove such adverse possession.Without entering upon any discussion of the evidence we must hold that there was no testimony which would warrant a jury in finding that Daniel Cameron, or any one under him, had actual possession of the lot during any portion of the time between April, 1860, and 1876, and hence the verdict was properly directed, unless counsel is right in urging (1) that the possession taken under the tax deed, and continued for more than 10 years, did not ripen into a title; (2) that the tax deed is void for uncertainty in the description.It is conceded by the plaintiffs that as the lot was vacant and unoccupied, and the deed void upon its face, the constructive possession remained in the original owner until actual possession was taken in April, 1860.

On the part of the defendants, it is claimed that the rights of the plaintiffs are restricted to and governed by section 123, c. 15, Rev. St. 1849, which provided, that “any suit or proceeding for the recovery of lands sold for taxes, except in cases where the taxes have been paid, or the lands redeemed as provided by law, shall be commenced within three years from the time of recording the tax deed of sale, and not thereafter.”Seesection 1187, Rev. St.To make the limitation prescribed in that section available to the McMillans, or those claiming under them, it was essential that they should have taken actual and adverse possession of the lot, and held the same during the three years next after the recording of the tax deed.Edgerton v. Bird,6 Wis. 527;Falkner v. Dormon,7 Wis. 388;Sprecher v. Wakeley,11 Wis. 433;Knox v. Cleveland,13 Wis, 245;Parish v. Eager,15 Wis. 532;Lindsay v. Fay,25 Wis. 460;Cuttler v. Hurlbut,29 Wis. 152.It is conceded that the McMillans were not in such possession during any portion of the three years after the recording of the tax deed, and hence that the three years' limitation is not available to the plaintiffs.The contention is, however, that adverse possession as prescribed in section 7, c. 138, Rev. St. 1858, (section 4212, Rev. St.,) under such void tax deed, by those claiming title to the lot, founded on such tax deed, exclusive of any other right, and continuing for the period of 10 years, ripened into a perfect title under sections 5, 6, and 10, c. 138, Rev. St. 1858, (sections 4210,4211, and4215, Rev. St.,) notwithstanding such possession did not commence until after the expiration of three years from the time of recording the tax deed.Here the lot was inclosed by a substantial fence, and cultivated and occupied as a residence, and hence there can be no question but what it was held adversely within the meaning of the above section 7 of the statute.This being so, we are to inquire as to the meaning and applicability of sections 5,6, and10.Under section 5(section 4210, Rev. St.) occupancy was deemed to have been under and in subordination to the legal title, unless it appeared that such premises had been held and possessed adversely to such legal title for 10 years before the commencement of the action.Section 6(section 4211, Rev. St.) provided that “whenever it shall appear that the occupant, or those under whom he claims, entered into possession of any premises under claim of title, exclusive of any other right, founding such claims upon some written instrument, as being a conveyance of the premises in question, * * * and that there has been a continual occupation and possession of the premises included in such instrument, * * * under such claim, for 10 years, the premises so included shall be deemed to have been held adversely.”Section 10, c. 138, Rev. St. 1858, (section 4215, Rev. St.,) provided that “an adverse possession of 10 years, under the sixth and seventh sections, (sections 4211and4212, Rev. St.,) * * * shall constitute a bar to an action for the recovery of such real estate so held adversely, or of the possession thereof.”

It is strenuously urged, however, with much force and ability, that a tax deed, though valid upon its face, upon which the three years' limitation has been allowed to run in favor of the original owner of the land, cannot be deemed or taken to be a “written instrument, as being a conveyance of the premises in question,” within the meaning of those sections; and for a much stronger reason a tax deed void upon its face, and upon which such limitation has run against the tax-title claimant, cannot be deemed or taken to be such an instrument.The argument is that the statutes having provided special limitations in favor and against tax-title claimants, must be deemed to have excluded such claimants from the benefit of the 10 years' limitation.We are not aware that the question has ever been determined...