Wolf River Lumber Co. v. Brown

• Decision Date: 13 November 1894
• Citation: 88 Wis. 638,60 N.W. 996
• Parties: WOLF RIVER LUMBER CO. v. BROWN.
• Court: Wisconsin Supreme Court

88 Wis. 638

60 N.W. 996

WOLF RIVER LUMBER CO.

v.BROWN.

Supreme Court of Wisconsin.

Nov. 13, 1894.

Appeal from circuit court, Oneida county; Samuel D. Hastings, Jr., Judge.

Action by the Wolf River Lumber Company against E. D. Brown for a perpetual injunction to restrain defendant from further prosecuting an action of replevin for logs. From an order denying an injunction, plaintiff appeals. Affirmed.

This is an action to obtain a perpetual injunction enjoining and restraining the defendant from prosecuting a certain action of replevin, brought in the circuit court of Oneida county by the defendant against the plaintiff, for the recovery of 450,000 feet of pine saw logs, the property of the plaintiff in that action, having certain specified marks, alleged in the complaint therein to have been cut during the winter of 1891-92 from the S. W. 1/4 of the S. W. 1/4 of section 17, township 39 N., of range 8 E., in Oneida county, Wis., which the plaintiff therein owned in fee simple, and were removed therefrom by the Wolf River Lumber Company, the defendant in said action; and it was alleged that it wrongfully took said property from the plaintiff's possession, and had ever since unlawfully and wrongfully detained it, to the plaintiff's damage of $3,500. The answer of the Wolf River Lumber Company in the replevin action consisted of a general denial of the complaint, except as it specifically admitted, and alleged that the logs were cut and removed from the land in question by one Kathan, who was in possession under paper title, claiming to be the owner thereof (this title was, in substance, a certain tax deed of the premises, dated May 16, 1878, to one J. D. Gillett, and another like deed dated September 11, 1879, both of which, it was alleged, were fair on their face and duly recorded; also a certain other tax deed to one John Mercer, dated 27th of June, 1885, in like manner fair on its face and recorded); and that said Gillett and Mercer, through mesne conveyances, had conveyed to said Kathan the title so acquired by them prior to cutting said timber, and that they entered thereunder, and cut said timber and logs, in good faith, believing said title to be valid; that more than three years had elapsed since the recording of each of said deeds before the commencement of the action, and no proceeding had been brought to set them, or either of them, aside, or to recover the possession of the land from Kathan; and relied upon the statute of limitations of three years. The material facts in regard to two of the tax titles to the land in question are substantially the same as in the case of Brown v. Cohn (decided herewith) 60 N. W. 826. The complaint in this action, after setting out the plaintiff's title as founded upon said tax deeds, alleges that the title of Gillett and Mercer thereunder had been transferred to the plaintiff, and is held and owned by the plaintiff, and that the lands remained vacant and unoccupied for more than three years after each of said deeds was recorded, and that they were in the constructive possession of the tax-deed grantees, and insists upon the statute of limitations of three years as protecting and making perfect said title; that the defendant sets up a claim to said lands, and to be the owner thereof in fee, and to have title adverse to the plaintiff, but that such claim is illegal, fraudulent, and void, and a cloud upon the plaintiff's title to said land, to its great injury, etc.; that the defendant was the owner of the original or patent title to the land, and claims that he paid the taxes of 1874 and 1875, for which the land was sold in the years 1875 and 1876, and that he redeemed said lands from the tax sale thereof made in the year 1875 and in May, 1876, for such unpaid taxes, prior to the issuing of the tax deeds based thereon, and whereby the certificates of sale became void and of no force or effect, and said tax deeds are for that reason null and void; that the defendant pretends to hold such tax or redemption receipts of the county clerk, showing such payment of said taxes and the redemption of said land prior to the time of issuing said tax deeds, and charges that the claim that the land was redeemed by the plaintiff from such sales, and that the taxes for which said land was sold were paid, is false and fraudulent, and that in fact said taxes for which the said land was sold and conveyed had never been paid, or in any manner satisfied, except by the sale of said lands; that the pretended receipts of such payment of taxes and redemption are fraudulent, and were in fact never executed or delivered by the county clerk of said county, or by any officer or agent thereof; that they are not matter of record in the proper county offices where it is claimed the same were issued, and are being used by defendant as proof of his pretended claim to said land, and of the invalidity of plaintiff's title thereto under said deeds. The complaint set out that the defendant claimed that there existed divers legal grounds of objection to the validity of the tax deed to Mercer, stating them at length, and that by reason thereof...