PiNNEY, J.
1. The lands in question in this case were regularly taxed for the year 1884, and were returned as delinquent, sold for nonpayment of the taxes, etc., and, no redemption having been made, a tax deed thereof was executed to the defendant and recorded May 29, 1888. The lands were then unoccupied, and so remained for the period necessary to bar an action for their recovery under secs. [664]*6641188, 1189, S. & B. Ann. Stats. • It is plain that the plaintiff, the former owner, had in good faith attempted and offered to pay to the proper town treasurer, in due season, the taxes for which the lands were sold (together with the taxes on his other lands in the same town), and was informed that there were no taxes on the roll against them. The town treasurer whose official duty it was to furnish the information applied for, and who represented the state in the exercise of the taxing power, fro hac vice, was mistaken; and no fault, upon the facts found, can be imputed to the plaintiff. He had a right to regard the information as true, and there is nothing to show that he had any reason to distrust it. There was no occasion for him to consult the sale list, or the notice of redemption of lands sold, and he had no occasion to pursue the matter further. Shall he lose his lands by reason of the tax deed, and for no fault of his own?
Here is a clear case of mutual mistake, which would certainly be ground for relief in a court of equity under its original jurisdiction in cases of fraud, accident, and mistake,— a mistake which, if not corrected, carries with it all the injurious consequences of a fraudulent misrepresentation. Equity has jurisdiction not only to arrest tax proceedings but to set aside tax deeds founded on or resulting from fraudulent conduct of taxing officers. Lefferts v. Calumet Co. 21 Wis. 688; Slater v. Maxwell, 6 Wall. 268, 277. And the first question presented is, assuming that sufficient ground exists for avoiding the tax deed after the lapse of the statutory bar of three years, whether it can be made available in a legal action of ejectment, or resort must be had to an equitable action to cancel the tax deed. The statute, sec. 1188, is that “ no action shall be maintained by the former owner, or any person claiming under him, to recover the possession of any land, or any interest therein, which shall have been conveyed by deed for the [665]*665nonpayment of taxes, or to avoid snob deed against any person claiming under such deed, unless such action shall be brought within three years next after the recording of such deed.” This statute does not apply (1) when the tax has been paid before sale; and (2) when the land has been redeemed after sale. Under our system of pleading no formal reply is allowed to new matter set up as a defense, but the plaintiff is allowed to reply in evidence at the trial. Had the taxes in this case been actually paid to the treasurer, there can be no doubt the plaintiff would be allowed to show that fact to defeat the tax deed, because in such case, by the statute, it would be absolutely void and of no avail. In Morgan v. Bishop, 56 Wis. 284, it was held that the plaintiff in ejectment might, without having pleaded them, show any facts affecting the validity of the tax deed, or which would render it unavailable to the defendant. We hold, therefore, that the question raised can be litigated in this action, under the present pleadings.
2. It cannot be maintained, we think, that the taxes in this case were actually paid. The order providing for the payment of the amount of such taxes, interest, etc., into court, before judgment was entered for the plaintiff, sets that question at rest; but the question still remains whether what took place by way of offer to pay, and mistaken information by the officer whose duty it was to state the amount of taxes, if any, on plaintiff’s land, does not place him substantially, for all purposes of protecting his rights, in the same position as if he had actually paid his money, and so that the lien of the taxes was removed in like manner as that of a mortgage by tender, though not kept good, which discharges the lien of a mortgage (Breitenbach v. Turner, 18 Wis. 141; Kortright v. Cady, 21 N. Y. 343; Loomis v. Pingree, 43 Me. 312), and therefore the power of the taxing officer to proceed further was suspended or defeated. In Breisch v. Coxe, S1 Pa. St. 346, it [666]*666is said: “ It is an almost universal rule which substitutes a tender for performance when the tender is frustrated by the act of the party entitled to performance.” In Randall v. Dailey, 66 Wis. 285, it was held, in respect to paying taxes after they had been returned as delinquent,— a similar question,— that a land-owner making such payment to the county treasurer is entitled to rely upon the statement of the - officer as to the amount due, and cannot be prejudiced by a mistake of the officer as to the amount, and the tax deed issued upon a subsequent sale was held void, although the sum paid was twenty-five cents less than the amount actually due; and in many other like bases the same ruling has been made, to the effect that the mistake of the officer in stating the amount due will not affect the redemption made in reliance thereon. Dietrick v. Mason, 57 Pa. St. 40; Price v. Mott, 52 Pa. St. 315; Baird v. Cahoon, 5 Watts & S. 540. In Bubb v. Tompkins, 47 Pa. St. 359, a redemption was held not defeated by the failure to pay another tax on the lands, necessary to make the redemption good, caused by the mistake of the county treasurer ; and Forrest v. Henry, 33 Minn. 434, was a like case to the last, where a subsequent sale and deed for the omitted tax were held void. In Van Benthuysen v. Sawyer, 36 N. Y. 150, it was held that, if redemption of lands sold for taxes is prevented by the fault or misconduct of the officer through whom such redemption is to be made, the title will not pass by a subsequent deed to the purchaser.
These decisions are founded on the ground that the treasurer is the legal custodian of the books, and possesses full and authentic information, and it is his official duty to furnish it; that the land-owner cannot get the necessary information in any other way, and is not bound to search the books for himself, and that land-owners almost always do, and rightfully may, depend on information thus received; and that the party cannot be involved in the loss of his land [667]*667by the mistake of the officer. The same reasons ought to be followed with like consequences in a case like this, where the land-owner applies to pay, and offers and is ready to pay, the taxes on his lands, and is informed by the treasurer, as in this case, that there are none to pay; and courts of the highest respectability and authority have so held. In People ex rel. Cooper v. Registrar of Arrears, 114 N. Y. 19, it was held that where a taxpayer calls upon the proper officer for a statement of all the taxes due from him, receives a statement, and pays accordingly, and afterwards the land is sold for nonpayment of taxes in arrear when such statement was furnished, and not included by mistake of the officer, the title of the taxpayer is not divested by the sale. To the same effect is the case of Martin v. Barbour, 34 Fed. Rep. 701-710, where the question was elaborately considered. Kinsworthy v. Austin, 23 Ark. 375, is to the same effect; and in the case of Breisch v. Coxe, 81 Pa. St.
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PiNNEY, J.
1. The lands in question in this case were regularly taxed for the year 1884, and were returned as delinquent, sold for nonpayment of the taxes, etc., and, no redemption having been made, a tax deed thereof was executed to the defendant and recorded May 29, 1888. The lands were then unoccupied, and so remained for the period necessary to bar an action for their recovery under secs. [664]*6641188, 1189, S. & B. Ann. Stats. • It is plain that the plaintiff, the former owner, had in good faith attempted and offered to pay to the proper town treasurer, in due season, the taxes for which the lands were sold (together with the taxes on his other lands in the same town), and was informed that there were no taxes on the roll against them. The town treasurer whose official duty it was to furnish the information applied for, and who represented the state in the exercise of the taxing power, fro hac vice, was mistaken; and no fault, upon the facts found, can be imputed to the plaintiff. He had a right to regard the information as true, and there is nothing to show that he had any reason to distrust it. There was no occasion for him to consult the sale list, or the notice of redemption of lands sold, and he had no occasion to pursue the matter further. Shall he lose his lands by reason of the tax deed, and for no fault of his own?
Here is a clear case of mutual mistake, which would certainly be ground for relief in a court of equity under its original jurisdiction in cases of fraud, accident, and mistake,— a mistake which, if not corrected, carries with it all the injurious consequences of a fraudulent misrepresentation. Equity has jurisdiction not only to arrest tax proceedings but to set aside tax deeds founded on or resulting from fraudulent conduct of taxing officers. Lefferts v. Calumet Co. 21 Wis. 688; Slater v. Maxwell, 6 Wall. 268, 277. And the first question presented is, assuming that sufficient ground exists for avoiding the tax deed after the lapse of the statutory bar of three years, whether it can be made available in a legal action of ejectment, or resort must be had to an equitable action to cancel the tax deed. The statute, sec. 1188, is that “ no action shall be maintained by the former owner, or any person claiming under him, to recover the possession of any land, or any interest therein, which shall have been conveyed by deed for the [665]*665nonpayment of taxes, or to avoid snob deed against any person claiming under such deed, unless such action shall be brought within three years next after the recording of such deed.” This statute does not apply (1) when the tax has been paid before sale; and (2) when the land has been redeemed after sale. Under our system of pleading no formal reply is allowed to new matter set up as a defense, but the plaintiff is allowed to reply in evidence at the trial. Had the taxes in this case been actually paid to the treasurer, there can be no doubt the plaintiff would be allowed to show that fact to defeat the tax deed, because in such case, by the statute, it would be absolutely void and of no avail. In Morgan v. Bishop, 56 Wis. 284, it was held that the plaintiff in ejectment might, without having pleaded them, show any facts affecting the validity of the tax deed, or which would render it unavailable to the defendant. We hold, therefore, that the question raised can be litigated in this action, under the present pleadings.
2. It cannot be maintained, we think, that the taxes in this case were actually paid. The order providing for the payment of the amount of such taxes, interest, etc., into court, before judgment was entered for the plaintiff, sets that question at rest; but the question still remains whether what took place by way of offer to pay, and mistaken information by the officer whose duty it was to state the amount of taxes, if any, on plaintiff’s land, does not place him substantially, for all purposes of protecting his rights, in the same position as if he had actually paid his money, and so that the lien of the taxes was removed in like manner as that of a mortgage by tender, though not kept good, which discharges the lien of a mortgage (Breitenbach v. Turner, 18 Wis. 141; Kortright v. Cady, 21 N. Y. 343; Loomis v. Pingree, 43 Me. 312), and therefore the power of the taxing officer to proceed further was suspended or defeated. In Breisch v. Coxe, S1 Pa. St. 346, it [666]*666is said: “ It is an almost universal rule which substitutes a tender for performance when the tender is frustrated by the act of the party entitled to performance.” In Randall v. Dailey, 66 Wis. 285, it was held, in respect to paying taxes after they had been returned as delinquent,— a similar question,— that a land-owner making such payment to the county treasurer is entitled to rely upon the statement of the - officer as to the amount due, and cannot be prejudiced by a mistake of the officer as to the amount, and the tax deed issued upon a subsequent sale was held void, although the sum paid was twenty-five cents less than the amount actually due; and in many other like bases the same ruling has been made, to the effect that the mistake of the officer in stating the amount due will not affect the redemption made in reliance thereon. Dietrick v. Mason, 57 Pa. St. 40; Price v. Mott, 52 Pa. St. 315; Baird v. Cahoon, 5 Watts & S. 540. In Bubb v. Tompkins, 47 Pa. St. 359, a redemption was held not defeated by the failure to pay another tax on the lands, necessary to make the redemption good, caused by the mistake of the county treasurer ; and Forrest v. Henry, 33 Minn. 434, was a like case to the last, where a subsequent sale and deed for the omitted tax were held void. In Van Benthuysen v. Sawyer, 36 N. Y. 150, it was held that, if redemption of lands sold for taxes is prevented by the fault or misconduct of the officer through whom such redemption is to be made, the title will not pass by a subsequent deed to the purchaser.
These decisions are founded on the ground that the treasurer is the legal custodian of the books, and possesses full and authentic information, and it is his official duty to furnish it; that the land-owner cannot get the necessary information in any other way, and is not bound to search the books for himself, and that land-owners almost always do, and rightfully may, depend on information thus received; and that the party cannot be involved in the loss of his land [667]*667by the mistake of the officer. The same reasons ought to be followed with like consequences in a case like this, where the land-owner applies to pay, and offers and is ready to pay, the taxes on his lands, and is informed by the treasurer, as in this case, that there are none to pay; and courts of the highest respectability and authority have so held. In People ex rel. Cooper v. Registrar of Arrears, 114 N. Y. 19, it was held that where a taxpayer calls upon the proper officer for a statement of all the taxes due from him, receives a statement, and pays accordingly, and afterwards the land is sold for nonpayment of taxes in arrear when such statement was furnished, and not included by mistake of the officer, the title of the taxpayer is not divested by the sale. To the same effect is the case of Martin v. Barbour, 34 Fed. Rep. 701-710, where the question was elaborately considered. Kinsworthy v. Austin, 23 Ark. 375, is to the same effect; and in the case of Breisch v. Coxe, 81 Pa. St. 336, 345-348, the authorities are reviewed, arid it is there held that if the owner pays all the taxes stated by the treasurer he has done his whole duty; that “ his claim to be protected against a sale of his lands for taxes he stood ready to pay, but which the proper officer has failed to present to him on demand, is quite as great as that of the purchaser to be protected against the act of the same officer in making a sale for taxes actually paid; ” and that “ it is but just that a bona fide attempt to pay all the taxes, frustrated by the fault of the treasurer, should stand as the equivalent of actual payment.” Loomis v. Pingree, 43 Me. 312. In Breisch v. Coxe, supra, it was held that the five years statute of limitations contained in the third section of the act of April 3, 1804, that no action should lie ,for the recovery of lands sold for taxes, “unless the same be brought within five years after the sale thereof for taxes, as aforesaid,” would not bar the plaintiff’s right of recovery as against a sale for taxes under such circumstances, [668]*668and it was said by the court: “ If, then, a bona fide offer to pay all the' taxes, . . . frustrated by the negligence of the treasurer to give information of all the taxes charged against the land, is the legal equivalent of actual payment of taxes in talcing away the jtorisdiction, as we have seen it is, the conclusion follows that the limitation of five years in the act of 1804 does not apply to such a case. The want of authority to sell is as clear as when the taxes have been actually paid, and the owner is not bound to presume a sale, and follow up its consequences within five years. All the hardship attributed to the purchaser’s want of knowledge is as fairly imputable to a case of actual payment as it is to one of tendered payment. In neither does the fact, appear so as to challenge his notice.”
As to all such defects or want of authority to sell and convey, the doctrine of caveat emptor applies, and the purchaser who takes a title depending upon the exercise of special statutory authority cannot be considered a bona fide purchaser without notice. He must see to it, at his peril, that the title he takes is a valid one. Besides, he never pays a full or fair price, but gets, rather, “ acres for cents.” Cooley, Taxation (2d ed.), 475-558; 2 Desty, Taxation, 850; Curts v. Cisna, 7 Biss. 260, 268; Martin v. Barbour, 34 Fed. Rep. 711. And this is true even after the three years statute of limitations has run in favor of the deed, to the extent that a purchaser for full value and without notice from the grantee in the tax deed will not be protected from a secret and unofficial redemption from the sale. Warren v. Putnam, 63 Wis. 410; Cornell University v. Mead, 80 Wis. 387. It was not within the plan or purpose of the statute of limitations in respect to tax deeds that the lapse of the statutory period should be conclusive as against the question of payment or redemption or bona fide attempts to make payment or redemption which have been frustrated by the fault of the officer to or through whom [669]*669such payment could alone be made. McMahon v. McGraw, 26 Wis. 615; Fox v. Zimmermann, Wis. 415. This special limitation applies only to actions in which the validity or regularity of the tax proceedings are questioned for want of conformity with the provisions of law. Questions of payment and redemption, and matters which put the land-owner in a position where he may claim that, as to him, the taxes have been so far paid, or the land redeemed, as to make further proceedings illegal, are not within the statute or concluded by it. This is no hardship, as against the purchaser at the tax sale, who purchases for such a small consideration, and who stands in privity with the tax officers who are alone at fault in the premises, and is, in law, affected with notice of that fact. We therefore hold that the recovery in this case was right.
The validity of tax sales where nonpayment of the taxes was due to mistake or negligence of tax officers, is the subject of an extensive .note to the above case in SO L. R. A. 487.— Rep.
By the Court. — The judgment of the circuit court is affirmed.