Mead v. Nelson

• Decision Date: 10 May 1881
• Citation: 8 N.W. 895,52 Wis. 402
• Parties: MEAD AND OTHERS v. NELSON.
• Court: Wisconsin Supreme Court

52 Wis. 402

8 N.W. 895

MEAD AND OTHERS

v.NELSON.

Supreme Court of Wisconsin.

Filed May 10, 1881.

Appeal from circuit court, Waupaca county.

G. W. Washburn, for appellants.

Hastings & Greene and Myron Reed, for respondent.

ORTON, J.

The defendant was allowed to introduce in evidence a tax deed to the county of Waupaca of an undivided half of the premises. The tax deed bears date June 23, 1879, and the tax certificate upon which it was issued bears date May 9, 1876. On the trial the plaintiffs offered, but were not allowed to show, certain irregularities in the tax proceedings anterior to the issuing of the certificate. Such evidence was excluded on the ground that the statutory limitation of nine months in which the tax certificate could be avoided for any such causes had expired. The statute of limitations and its effect upon this certificate are, therefore, first to be considered. Section 7, c. 334, Laws 1878, provides that “every action or proceeding to set aside any sale, * * * or to cancel any certificate, * * * shall be commenced within nine months after the making of such sale, date of such certificate, * * * as the case may be, and not thereafter: provided, that in the case of sales, tax certificates, * * * heretofore made, * * * such action or proceeding, if not already barred, may be brought within nine months after the publication of the act, and not thereafter.” This act was published March 25, 1878.

The learned counsel of the appellant assumes two positions against the application of this section to this tax certificate: First, that it only applies to direct proceedings in equity by the owner “to set aside any sale or cancel any certificate,” and not to the same grounds alleged by the plaintiffs in rebuttal of a defence to an action of ejectment predicated upon a tax sale or certificate. In this case there is no replication setting up such matter and asking for such relief against the tax sale or certificate, and perhaps no replication was necessary under our practice; but the testimony offered by the plaintiffs to avoid the effect of this tax sale and certificate is precisely of the same nature and effect, and if made available to the plaintiffs, in this way, the record of such adjudication would be thereafter conclusive upon such matters, as in a direct proceeding to set aside or cancel them. We are, therefore, of the opinion that this salutary limitation has application to protect the sale and certificate against such showing in this case. The second position assumed is that the parts of this section relating to tax sales and certificates, upon which the statute had not already run, were repealed by the Revision of 1878. This may be so, but it was obviously a mistake of the committee on revision in not incorporating this act of the legislature of 1878 correctly and fully into the Revision, as they should have done. But the Revision, as a general law, having been passed and enacted by the legislature with its repealing provisions, must be held to have repealed the parts of the proviso of said section so omitted. On this question we fully adopt the views of the learned counsel of the respondent, that notwithstanding the repeal in this way of the nine-months' limitation as to such tax sales and certificates, yet, as the Revised Statutes contain a limitation of actions for this purpose in section 4221, Rev. St., the tax sale and certificate are within the provisions of ...