Morgan v. Bishop

• Decision Date: 12 December 1882
• Citation: 14 N.W. 369,56 Wis. 284
• Parties: MORGAN AND OTHERS v. BISHOP AND ANOTHER.
• Court: Wisconsin Supreme Court

56 Wis. 284

14 N.W. 369

MORGAN AND OTHERS

v.BISHOP AND ANOTHER.

Supreme Court of Wisconsin.

Filed December 12, 1882.

Appeal from circuit court, Shawano county.Jackson & Thompson, for appellants, Richard T. Morgan and others.

G. W. Washburn, for respondents, D. S. Bishop and another.

ORTON, J.

This is an action of ejectment, and the defendant D. S. Bishop, in his answer, denied the plaintiffs' title, and alleged title in fee in himself, and admitted possession, and his wife, who is made defendant, disclaimed. The plaintiff having proved title, the defendant D. S. Bishop introduced in evidence, against the objection of the plaintiff, a tax deed from the county of Shawano to one C. S. Wescott, and also a deed from said Wescott to himself of the premises in question. The plaintiff's objection to the introduction of the tax deed need not be noticed at this time, because, as we view the case, there was afterwards an error in the ruling of the circuit court which prevented a full trial of the cause, and which will render a new trial necessary. After the tax deed was received in evidence, the plaintiff offered to show certain irregularities and defects in the antecedent tax proceedings which rendered it void, and the circuit court sustained an objection of the defendant against the introduction of such evidence. The ground of the objection, as well as that of the ruling of the court thereon, is left to conjecture, as it is not stated in the record; but, from the position assumed by the learned counsel of the respondent, we presume that such ground was that the tax deed was protected by the statute of limitations of nine months in subdivisions d and e, § 1210, Rev. St., although the learned counsel rather blindly insists that the deed was competent, notwithstanding such antecedent defects, to show title out of the plaintiff or in a stranger. If the objection to such evidence rested on that ground, then it is answered by the claim sought to be established by such evidence, that the tax deed was void. Aside from this ground, giving the objection to any evidence to impeach the tax deed the broadest scope, two questions are raised: (1) Without pleading it, can this statute of limitations be made available to the defendant to protect his tax deed from such impeachment? (2) Can the facts consisting of such antecedent defects in the tax proceedings, which would invalidate the tax deed, be shown by the plaintiff without pleading them?

As to the first question, the learned counsel of the respondent says in his brief: “We could not answer that the statute of limitations had run against the plaintiff's cause of action, because such was not the fact,” and yet the learned counsel would insist that the statute had run so as to protect the defendant's tax deed. This apparent contradiction seems to have arisen from a misunderstanding of the case cited of Mead v. Nelson, 52 Wis. 402; [S. C. 8 N. W. REP. 895.] In that case the defendant answered by setting up his tax deed, and pleading this statute of limitations, although for brevity it is stated in the printed case, and in the statement of facts accompanying the opinion, that the statute of limitations had run against the plaintiff's cause of action. The statute had run against the plaintiff's cause of action, because it had run in favor of the tax deed set up in the answer,...