Potts v. Cooley

• Decision Date: 08 February 1881
• Citation: 8 N.W. 153,51 Wis. 353
• Parties: POTTS v. COOLEY.
• Court: Wisconsin Supreme Court

51 Wis. 353

8 N.W. 153

POTTS

v.COOLEY.

Supreme Court of Wisconsin.

Filed February 8, 1881.

Appeal from circuit court, Portage county.

This is an action to eject the defendant from a village lot in Plover, on the ground that the plaintiff had title thereto by virtue of two tax deeds from Portage county to him,--one dated, executed, and recorded September 1, 1879, and the other at some other time not given. The defendant answered, denying the allegations of the complaint, and claiming title and possession, and setting up an equitable counter claim to the effect that the plaintiff purchased the tax certificates upon which the deeds were issued, under an agreement with the defendant that they should be for his use and benefit. The jury was waived, and the case was tried by the court in March, 1880, when it was found that the defendant had been in the actual occupancy and possession of the lot for more than 30 days within the six months immediately preceding the application for the respective tax deeds, and that no affidavit sufficiently showing the service upon the defendant of the notice required and provided for by section 1175, Rev. St., was filed with the county clerk before the issue of either of said deeds, and that there was not any sufficient proof of such service so filed; and, as a conclusion of law, that both tax deeds were void, that the complaint was not proven, and that the defendant was entitled to judgment dismissing the complaint. The bill of exceptions does not purport to contain all the evidence, but expressly omits a large portion thereof.G. W. Cate, for appellant.

Miner Strope and Tracy & Bailey, for respondent.

CASSODAY, J.

The only error complained of is that the court, contrary to the evidence, found that the notice for the application for the tax deed of September 1, 1879, and the proof of the service of the same, were insufficient. Section 1175, Rev. St., provides that “whenever any lot or tract of land, * * * * sold for taxes, shall have been in the actual occupancy or possession of any person, other than the owner and holder of the certificate of such tax sale, * * * for the period of 30 days or more, at any time within the six months immediately preceding the time when the tax deed upon such sale shall be applied for, such deed shall not be issued unless a written notice shall have been served upon the owner, or upon such occupant, by the holder of such certificate, at least three months prior thereto, stating that he is the owner of such certificate, and setting forth the date thereof, and giving notice that after the expiration of three months from the service thereof such deed will be applied for. * * * An affidavit showing such service, and specifying particularly the time and manner thereof, shall be filed with the...