Morgan v. Bishop

• Decision Date: 06 November 1884
• Citation: 61 Wis. 407,21 N.W. 263
• Parties: MORGAN AND OTHERS v. BISHOP AND WIFE.
• Court: Wisconsin Supreme Court

61 Wis. 407

21 N.W. 263

MORGAN AND OTHERS

v.BISHOP AND WIFE.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Dodge county.

This is an action of ejectment, with a complaint in the form prescribed by statute. At first the defendants answered separately, in effect, denying title in the plaintiffs; admitting possession in D. S. Bishop; claiming it as rightful; alleging absolute ownership in fee in him; and denying and disclaiming title or possession in his wife. On the trial the defendants put in evidence and relied upon a tax deed. The plaintiffs offered evidence to impeach the tax deed, but it was excluded, notwithstanding the statute of limitations had not been pleaded, and because of such exclusion the judgment was reversed by this court. 56 Wis. 284;S. C. 14 N. W. REP. 369. Upon the cause being remanded the venue was changed from Shawano to Dodge county, July 3, 1883, on application of the plaintiffs. July 19, 1883, the papers were certified to Dodge county. September 1, 1883, the cause was noticed for a second trial upon the same issues, by the defendants, at the regular September term of the court for Dodge county for 1883, whereupon the plaintiffs subpœnaed their witnesses at a considerable expense, and were ready for trial at said term. September 1, 1883, the defendants served upon the plaintiffs notice of a motion to be made September 25, 1883, for leave to amend the answer of D. S. Bishop, with a copy of the proposed amended answer and his affidavit, upon which, with the papers served and filed in the cause, the motion was based. The affidavit of Bishop states, in effect, that the plaintiffs claimed title to the land by virtue of a deed from the Whartons, who claimed under two tax deeds, each dated November 17, 1869; that the affiant was the owner of the original title to the land derived from and under the patent therefor from the United States; that December 7, 1880, he, on payment of $350, purchased and obtained a conveyance of the land from Wescott, who derived his title under and through a tax deed issued to Shawano county on a tax sale subsequent to the tax deed under which the plaintiffs claim title; that the statute of limitations had not been pleaded, because he had been advised by his counsel that it was available to the defendants without pleading it; and that he had relied upon such advice. The proposed amended answer alleged, in effect, that the taxes on the land for 1876 were unpaid and returned as delinquent, and that the lands were sold thereon May 8, 1877; that certificates of sale, in the usual form, were issued to the purchaser thereon; that the lands were never redeemed from the sale; that tax deeds were executed and delivered to the county thereon, July 3, 1880; that the title so acquired by the county had been duly conveyed to the defendants; that more than three years had elapsed since the date of the tax certificates upon which such tax deeds were executed; that upon the trial the defendants would insist that the tax certificates had, prior to the issuing of the tax deed, become, by lapse of time, completely, perfectly, and absolutely valid in the law; and that, consequently, there could be no inquiry into the validity of any of the tax proceedings prior to the tax sale; and that the defendant would, upon the trial of the cause, rely and insist upon the benefit and protection of the statute of limitations; and that the plaintiffs' cause of action did not accrue within one year prior to the commencement of this action. In opposition to the motion, one of the plaintiffs, by affidavit, testified that the plaintiffs contracted for a good, sure, perfect, and absolute title in fee-simple to the lands in 1870 or 1871, agreeing to pay therefor the full value thereof, and did pay for that and other lands purchased at the same time $2,200, and received a warranty deed from Buck and Johnson, conveying the same to the plaintiffs, November 30, 1872, from persons whom he understood and verily believed at the time were seized in fee-simple of the lands under a regular chain of title from the government of the United States; that ever since the contract therefor the plaintiffs had possessed and used the lands as their own property; and that they claimed title under and by virtue of the warranty deed. The court ordered that the “defendants have leave to amend their answer, as prayed for in their motion, by paying the costs taxed in the supreme court in favor of plaintiffs, amounting to $67.52, and ten dollars costs of this motion.” From that order the plaintiffs bring this appeal.Jackson & Thompson, for appellants.

G. W. Washburn, for respondents.

CASSODAY, J.

We have just held that a trial court may, in the exercise of a sound discretion under all the circumstances of a given case, allow an amendment to a pleading setting up the statute of limitations. Smith v. Dreggert, ante, 46. Where, upon a proper application, such power has been exercised, this court only determines whether there has been an abuse of such discretion. Id. True, as argued, the time for answering had long expired, and the failure to set up the statute of limitations in the original answer was, for the time being, a waiver of the right given by the statute; but the court, nevertheless, had power in its discretion, on motion, and for good cause shown, and upon such terms as were just, to allow such amendment after the time limited had expired. Section 2831, Rev. St.; Woodruff v. Depere, 60 Wis. 128;S. C. 18 N. W. REP. 761. So the court, at any stage of the action, in the furtherance of justice, and upon such terms as were just, was empowered to allow the answer to be thus amended. Section 2830, Rev. St.; Smith v. Dreggert, supra. What will be in the “furtherance of justice,” and what “terms” are to be regarded as “just,” must depend upon the facts of each particular case. Orton v. Noonan, 25 Wis. 676;Capron v. Supervisors, 43 Wis. 617. But it must be remembered, that a far more stringent rule maintains where an answer is sought to be amended by setting up the plea of usury, or the statute of limitations, in favor of a tax-title claimant in a suit between private persons, than in other cases. Thus, in allowing an amendment setting up the plea of usury, it has been held not to be an abuse of discretion to require the payment of what was justly due as a condition of allowing the amendment. Newman v. Kershaw, 10 Wis. 340;Jones v. Walker, 22 Wis. 220;Weber v. Zeimet, 27 Wis. 685. To allow such amendment, setting up the plea of usury without imposing terms which were substantially just, has been held to be an abuse of discretion. Dole v. Northrop, 19 Wis. 249.

This court has frequently gone so far as to sustain orders, in suits between private parties, refusing to allow amendments setting up the statute of limitations in favor of a tax-title claimaint. Fogarty v. Horrigan, 28 Wis. 142;Eldred v. Oconto Co. 30 Wis. 206;Meade v. Lawe, 32 Wis. 266;Dehnel v. Komrow, 37 Wis. 336;Plumer v. Clarke, 59 Wis. 646;S. C. 18 N. W. REP. 467. On the other hand, the rigidity of the rule should be relaxed when the application is made by a municipal corporation, (Baker v. Supervisors, 39 Wis. 444;Capron v. Supervisors, 43 Wis. 613;Wisconsin Cent. Ry. Co. v. Lincoln Co. 57 Wis. 137;S. C. 15 N. W. REP. 121,) or by the original owner against a tax-title claimant. Orton v. Noonan, 25 Wis. 676;Eldred v. Oconto Co. 30 Wis. 208;Wilson v. Henry, 35 Wis. 245. Such being the established rules of law, the obvious duty of a trial court, sitting as a court of conscience in the exercise of a sound discretion upon such application, is to do or secure substantial justice to the parties under all the circumstances, regard being had to the original...