Howe v. Genin

Wisconsin Supreme Court

Howe v. Genin

15 N.W. 161, 57 Wis. 268, 1883 Wisc. LEXIS 309

CourtWisconsin Supreme Court

DecidedMarch 13, 1883

StatusPublished

Cited by2 cases

This text of 15 N.W. 161 (Howe v. Genin) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howe v. Genin, 15 N.W. 161, 57 Wis. 268, 1883 Wisc. LEXIS 309 (Wis. 1883).

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Opinion

Cassoday, J.

The only question presented by the record is Avhether the affidavit of non-occupancy was sufficient. The statute provides, in effect, that in no case shall any tax deed be issued upon a tax certificate, upon land not occupied, unless proof be filed with the officer issuing the deed that such land was not occupied or possessed for the period of thirty days, as thereinbefore specified; that is to say, 11 for theperiod of thirty days or more at any time within the six months immediately preceding the time when the tax deed upon such sale shall be applied for.” Sec. 1175, R. S.. We are clearly of the opinion that the thirty days therein mentioned mean thirty consecutive days. The affidavit states, in effect, that the lot and pieces or parcel of land described was not, at the time of making the affidavit, in the possession or occupancy of any person, and had not been at any time for the period of thirty days within the six months immediately preceding. These things being so, and the statute requiring such possession to be for thirty continuous days, it is very evident that no such possession could be had for that period prior to the issuing of the deed. The words of the affidavit, “ that the lot and pieces or parcel of land enumerated and [270]*270described below,” followed with a specific description of each of the three forties adjoining each other and included in the certificates and deed, were sufficiently definite to show that none of the forties were occupied or possessed for the period mentioned, within the rule adopted in Dreutzer v. Smith, 56 Wis., 292. As there stated, if the land had in fact been occupied, it might easily have been shown in defense. It is true, we held in Potts v. Cooley, 51 Wis., 354, that the person giving notice to the occupant of the land of application for a tax deed, must state in the notice that he is the owner of the tax certificate, as required by the above section; but we do not think that the affidavit of non-occupancy must necessarily be made by such holder, much less that he must state that he is such. The reason for requiring such statement in the former case, obviously, has no application in the latter. This being so, it becomes immaterial whether the certificates had been actually assigned to the defendant at the time of making the affidavit or not.

By the Court.— The judgment of the circuit court is affirmed.

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Cassoday, J.

The only question presented by the record is Avhether the affidavit of non-occupancy was sufficient. The statute provides, in effect, that in no case shall any tax deed be issued upon a tax certificate, upon land not occupied, unless proof be filed with the officer issuing the deed that such land was not occupied or possessed for the period of thirty days, as thereinbefore specified; that is to say, 11 for theperiod of thirty days or more at any time within the six months immediately preceding the time when the tax deed upon such sale shall be applied for.” Sec. 1175, R. S.. We are clearly of the opinion that the thirty days therein mentioned mean thirty consecutive days. The affidavit states, in effect, that the lot and pieces or parcel of land described was not, at the time of making the affidavit, in the possession or occupancy of any person, and had not been at any time for the period of thirty days within the six months immediately preceding. These things being so, and the statute requiring such possession to be for thirty continuous days, it is very evident that no such possession could be had for that period prior to the issuing of the deed. The words of the affidavit, “ that the lot and pieces or parcel of land enumerated and [270]*270described below,” followed with a specific description of each of the three forties adjoining each other and included in the certificates and deed, were sufficiently definite to show that none of the forties were occupied or possessed for the period mentioned, within the rule adopted in Dreutzer v. Smith, 56 Wis., 292. As there stated, if the land had in fact been occupied, it might easily have been shown in defense. It is true, we held in Potts v. Cooley, 51 Wis., 354, that the person giving notice to the occupant of the land of application for a tax deed, must state in the notice that he is the owner of the tax certificate, as required by the above section; but we do not think that the affidavit of non-occupancy must necessarily be made by such holder, much less that he must state that he is such. The reason for requiring such statement in the former case, obviously, has no application in the latter. This being so, it becomes immaterial whether the certificates had been actually assigned to the defendant at the time of making the affidavit or not.

By the Court.— The judgment of the circuit court is affirmed.

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15 N.W. 161, 57 Wis. 268, 1883 Wisc. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howe-v-genin-wis-1883.

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