Ramsay v. Hommel

• Decision Date: 11 January 1887
• Citation: 31 N.W. 271,68 Wis. 12
• Parties: RAMSAY v. HOMMEL.
• Court: Wisconsin Supreme Court

68 Wis. 12

31 N.W. 271

RAMSAY

v.HOMMEL.

Supreme Court of Wisconsin.

January 11, 1887.

Appeal from circuit court, Clark county.

The plaintiff in this action of ejectment, commenced May 24, 1883, claims title to the premises in question under three tax deeds,--one executed and recorded January 23, 24, 1877; one May 12, 13, 1880, on sale of 1877; one May 29, 1882, on sale of 1879. The defendant answered by way of a general denial, and a claim of being the owner in fee in possession; and relied upon a tax deed regular upon its face, executed to him, and recorded May 14, 1883, on the tax sale of 1880, for the tax of 1879. On the trial, September 8, 1884, the court directed a special verdict for the plaintiff, subject to the opinion of the court on questions of law involved. November 28, 1885, the court, having considered such questions of law, ordered, in effect, that judgment be entered in favor of the plaintiff, and against the defendant, on the verdict, and in accordance therewith; but upon the condition that such order should be void and of no effect unless the plaintiff, within 90 days from that date, paid to the defendant the amount for taxes and interest due thereon, which amount was tendered by the plaintiff within the time; and thereafter, and January 8, 1886, judgment was entered upon said verdict in favor of the plaintiff, and against the defendant, in pursuance of said order; from which judgment the defendant brings this appeal.R. J. MacBride, for respondent, Ramsay.

B. T. French and Ring & Youmans, for appellant, Hommel.

CASSODAY, J.

It is conceded that the plaintiff has a perfect title to the land in question, unless it is cut off by the tax deed issued to the defendant. The sale upon which the deed was issued occurred subsequently to the enactments of chapters 305, 309, Laws 1880, and, of course, is subject to their provisions. The limitation of one year prescribed by section 3, c. 309, Laws 1880, even had it been pleaded, would only have been available to the defendant as to such errors or defects, if any, as went to the validity of the assessment, and affected the ground-work of the tax. Pier v. Prouty, 30 N. W. Rep. 232.

Among the irregularities here complained of is that the affidavit of the publisher and the printer of the newspaper in which the statement and the notice of sale was published, was sworn to May 7, 1880, and simply stated that the notice “was published in said newspaper for the period of five weeks, commencing on the ninth day of April, A. D. 1880.” This covered a period of just 28 days. The statutory requirement was that such “statement and notice shall in all cases be published once in each week, for four successive weeks prior to” the sale. Section 1130, Rev. St. Manifestly, the affidavit failed to show that the statement and notice were published once in each week during the time. The right to sell at all depended in part upon the compliance with this section.

This section also required, in effect, that the treasurer should, at least four weeks previous to the day of sale, cause to be posted up copies of said statement and notice in at least four public places in such county, one of which...