Van Ostrand v. Cole

• Citation: 110 N.W. 891,131 Wis. 446
• Parties: VAN OSTRAND v. COLE.
• Decision Date: 19 February 1907
• Court: United States State Supreme Court of Wisconsin

131 Wis. 446

110 N.W. 891

VAN OSTRAND

v.COLE.

Supreme Court of Wisconsin.

Feb. 19, 1907.

Appeal from Circuit Court, Price County; A. J. Vinje, Judge.

Action by De Witt Van Ostrand against Janet Macdonald Cole. From a judgment for plaintiff, defendant appeals. Affirmed.

An action in ejectment, under the statute, to recover the possession of 160 acres of vacant and unoccupied land. Plaintiff alleged ownership in fee and right of possession, and that defendant unlawfully withheld possession, and demanded judgment declaring the title and right of possession to be in him. Damages were also demanded. Defendant answered, claiming ownership in fee, that she had acquired title through deeds from Price county to the J. L. Gates Land Company and from that company to her. The various deeds were described in detail, as were certain tax certificates, alleged to have been assigned to defendant, and issued subsequent to the dates of the certificates upon which the tax deeds were based. These deeds were as follows: Tax deed dated March 29, 1899, recorded March 30, 1899, on tax certificate of May 21, 1895, for the taxes of 1894. Tax deed dated June 22, 1899, recorded June 23, 1899, on tax certificate of May 19, 1896, for the taxes of 1895. These two deeds were issued to Price county. On October 17, 1899, quitclaim deeds from Price county to the J. L. Gates Land Company and from the J. L. Gates Land Company to the defendant were recorded. Tax deed to the defendant, dated August 29, 1901, recorded August 29, 1901, on tax certificate of May 18, 1897, for the taxes of 1896. Tax deed to the defendant, dated August 30, 1901, recorded August 30, 1901, on tax certificate of May 17, 1898, for the taxes of 1897. The taxes levied against these lands for the years 1894, 1895, 1896, 1897, 1898, and 1899 were not paid. The lands were sold to the county for the delinquent taxes of these years, and the defendant acquired title through the quitclaim deeds above described to the interest of the county in the lands and the tax certificates which the county held at the time. The tax certificates for the year 1899 do not appear to have been disposed of by the county. Defendant has paid the taxes levied on the lands since 1899. Defendant alleged that Price county became the owner of all tax certificates issued on these lands after the issuance of the first tax sale certificate above described, and that under section 1191, Rev. St. 1898, the county in the year 1899 became the owner in fee of these lands, and that the lands were then and until conveyed by the county exempt from taxation. Defendant pleaded section 1191a, Rev. St. 1898, and alleged under it that five successive purchases by the county for taxes, if unredeemed, gave the county a title in fee. Section 1187, Rev. St. 1898, was pleaded, it being averred that in cases where vacant and unoccupied lands have been sold for delinquent taxes a party, in order to perfect his title under such tax deed, must bring an action to recover possession of the lands within three years from the recording of his tax deed. Defendant also pleaded sections 1210h, 1188, and 1189a of the Revised Statutes of 1898 as barring the action. Defendant therefore demanded judgment that she was the owner in fee of the lands, and that plaintiff's claim thereto was barred, and for costs. Plaintiff in his reply to the counterclaim of the defendant pleaded that the town treasurers failed to make valid return of these lands as delinquent for the years 1894, 1895, 1896, and 1897, in that the return, contrary to the statute, added the 5 per centum penalty to the delinquent taxes; that there was a failure to return the delinquent personal taxes with the delinquent taxes on lands; that these returns were defective because the town treasurers had not subscribed at the foot of the return according to the form of the statute (it appears the verification properly subscribed preceded the list); and that the descriptions of the separate parcels were indefinite and incomplete, in that the section, township, or range descriptions were not repeated or indicated by ditto marks for each parcel. The proceedings subsequent to the return were alleged to be defective, in that the proof of publication of the notice of sale was not filed with the county treasurer; that such proof of publication was not transmitted to the county treasurer within six days after publication, as prescribed by section 1132, Rev. St. 1898; that the proof did not show that the notice of sale was published “once in each week for four successive weeks” prior to the date of sale; that the proof failed to show that the paper in which the notices were published had been published regularly and continuously once in each calendar week for two years prior to the publication of the notices, as required by section 1130, Rev. St. 1898; and that the sale was fatally defective, because, under these conditions, it wrongfully included a printer's fee as part of the charges for the delinquent tax sales. Plaintiff in his reply offered to pay any sum due defendant for taxes, interest, and charges paid by defendant in obtaining her tax deeds and subsequently. Plaintiff on the trial showed, by records, title in himself by various deeds as follows: Tax deed to Geo. B. Burrows, dated and recorded May 16, 1891, on tax sale certificate of 1888. Tax deed to Geo. B. Burrows, dated and recorded May 24, 1892, on tax sale certificate of 1889. Tax deed to Geo. B. Burrows, dated and recorded June 1, 1893, on tax sale certificate of 1890. Tax deed to Geo. B. Burrows, dated and recorded June 2, 1894, on tax sale certificate of 1891. Tax deed to Geo. B. Burrows, dated and recorded May 24, 1890, on tax sale certificate of 1887. Quitclaim deed from Geo. B. Burrows to Thomas H. Patterson, dated and recorded May 4, 1897. Quitclaim deed from Thomas H. Patterson and wife to plaintiff, dated September 27, 1901, recorded September 28, 1901. The court refused to allow defendant to introduce evidence of irregularities in the proceedings on which the tax deeds on which plaintiff's title is founded were based. The judgment awarded allowed defendant the sum paid by her for taxes and whatever she had paid in procuring her tax deeds. Plaintiff was allowed his costs. This is an appeal from the judgment.Rublee A. Cole, for appellant.

Barry & Barry, for respondent.

SIEBECKER, J. (after stating the facts).

Much stress is placed in argument on the claim that plaintiff has failed to show title to the premises. As appears from the foregoing statement of the facts, plaintiff's claim of title is founded on the five tax deeds issued by Price...