Preston v. Thayer

• Citation: 127 Wis. 123,106 N.W. 672
• Parties: PRESTON v. THAYER ET AL.
• Decision Date: 30 January 1906
• Court: United States State Supreme Court of Wisconsin

127 Wis. 123

106 N.W. 672

PRESTON

v.THAYER ET AL.

Supreme Court of Wisconsin.

Jan. 30, 1906.

Appeal from Circuit Court, Ashland County; John K. Parish, Judge.

Action by William D. Preston against Minnie A. Thayer and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

This is an action of ejectment, commenced September 23, 1903, by the plaintiff, claiming title to the lands described by mesne conveyances from the government, against the defendants, who claim title under tax deeds. It is conceded that the plaintiff's title is good unless it has been divested by one or more of the tax deeds. It is undisputed that the seven tax deeds under which the defendants claim title were each and all issued to the defendant Minnie A. Thayer, and were recorded on and between February 1, 1898, and May 31, 1898, inclusive. It is conceded that six of the tax deeds were regular upon their face and that the lands described in each of said deeds were vacant and unoccupied at the times of recording such deeds, respectively, and remained so vacant and unoccupied continuously for more than three years thereafter, and for more than three years prior to the commencement of this action. October 5, 1899, Minnie A. Thayer, the grantee in each of said deeds, commenced seven actions, each against this plaintiff, William D. Preston, and wife, who were then nonresidents of this state, and others, to bar them from all right, title, interest, or claim in or to the lands covered by said tax deeds, respectively, or any part thereof, and for the costs and disbursements of the action. Orders for the service of the summons by publication in each of said seven actions were obtained October 5, 1899, and such service on Preston and wife and others by publication was completed January 2, 1900. April 21, 1900, Mrs. Thayer's attorney made affidavit of default of Preston and wife and other defendants in each of those seven actions, and May 5, 1900, judgment by default was taken in each of those actions, and May 19, 1900, each of those seven judgments was recorded. April 28, 1903, Preston and wife, as defendants in each of those actions, served a proposed verified answer therein on Mrs. Thayer's attorney in each of those actions and upon orders to show cause why each of said seven judgments should not be set aside as to the defendants Preston and wife therein, and why said Prestons should not be permitted to serve their answer in each of said actions; and upon the hearing of said applications the court, on May 4, 1903, by virtue of the authority given by section 2833 of the Revised Statutes of 1898, ordered in each of said actions that such default judgment be set aside, and the same was thereby set aside, as to the said William D. Preston and wife, upon the payment of $10 solicitor's fees and of the actual disbursements which Mrs. Thayer, the plaintiff therein, had incurred in taking such judgment, and that the said Preston and wife be permitted to file their answer in each of said seven actions, which was done; and such orders were fully complied with by Mr. and Mrs. Preston. September 21, 1903, Mrs. Thayer gave notice to Mr. and Mrs. Preston in each of said seven actions that the same were respectively discontinued as to Mr. and Mrs. Preston, and she thereby offered to pay the costs as soon as taxed, and on the same day judgment of such discontinuance in each of said actions was duly entered. Two days after such discontinuance Mr. Preston commenced this action of ejectment. Mrs. Thayer and the other defendants answered, and claimed title by virtue of and under said seven tax deeds, and also alleged, in effect, that the several steps in the tax proceedings upon which such tax deeds were respectively issued were regular and according to the statutes in such case made and provided. On the trial the seven tax deeds were admitted in evidence against the objections of the plaintiff, on the ground that under the allegations of the answer the burden was on the defendant to prove that the tax proceedings upon which said deeds respectively were issued were regular and valid before the deeds were admissible in evidence. Thereupon the plaintiff offered to prove that such proceedings, upon which each of such tax deeds were respectively issued, were irregular and not authorized by the statutes; but such offers were all excluded on the ground that the plaintiff was barred from making such proof by the three-year statutes of limitation. At the close of the trial the court found in effect that the seven tax deeds were respectively valid upon their face, and that the plaintiff's cause of action as to all the lands in question was barred by the statutes of limitation, and hence that the defendants were the owners of the lands described in fee simple, and were entitled to judgment in this action dismissing the complaint, and for their costs and disbursements herein, and ordered judgment accordingly. From the judgment so entered the plaintiff brings this appeal. Upon the trial, it was admitted, in effect, that if any one of the six tax deeds, so conceded to be valid upon their face, was not protected by the three-year statutes of limitation, then the evidence so offered by the plaintiff was admissible as to each of such tax deeds, and that the same would in that event be invalid, and “it was agreed by counsel for the respective parties that if under the pleadings and evidence the deed hereinbefore set out is valid, each of the remaining six tax deeds is likewise valid, but that if, under the pleadings and evidence, the tax deed so set out is invalid, each of said...