Morrow v. Lander

45 N.W. 956, 77 Wis. 77, 1890 Wisc. LEXIS 180

• Court: Wisconsin Supreme Court
• Decided: May 20, 1890
• Status: Published

Opinion

Cassodat, J.

There is no bill of exceptions. This being so, we must assume not only that there was evidence to sustain each and all the findings of fact, but also evidence disproving any and all inconsistent inferences. The finding to the effect that there was no proof that the requisite notice of sale was posted “ in a conspicuous place in the county treasurer’s office,” was a fatal defect, and necessarily invalidated the tax certificate and deed in question. Sec. 1130, S. & B. Ann. Stats.; Hilgers v. Quinney, 51 Wis. 63; Ward v. Walters, 63 Wis. 43; Ramsay v. Hommel, 68 Wis. 12; Morris v. Carmichael, 68 Wis. 133; Wis. Cent. R. Co. v. Wis. R. L. Co. 71 Wis. 105, 106. This being so, and unless barred by the statute of limitations pleaded, the plaintiff had the right to maintain this action to remove the tax deed and certificate as clouds upon his title, upon the conditions prescribed by ch. 309, Laws of 1880 (S. & B. Ann. Stats, sec. 1210A). Since the defect mentioned did not go to the validity of the assessment nor affect the groundwork of such tax, the plaintiff was required, as a condition precedent to the entry of judgment in his favor, to pay into court for the defendant the amount for which such land was sold, and the amount paid by him “for taxes assessed upon the premises subsequent to such sale, with interest on all such amounts at the rate of twenty-five per cent, per annum from the times of payment until the said money be so paid into court.” Secs. 4, 5, ch. 309, Laws of 1880. Such payment was required by the court, and paid by the plaintiff. There was no error in the refusal of the court to require, as a further condition precedent to the rendition of such judgment, that the plaintiff should also pay into court other taxes assessed on said lot prior to said sale, for the simple reason that such additional payment was not required by the statute.

The one year statute of limitation, pleaded by the defendant, simply requires that every action for canceling such tax deed or certificate, and removing the same as clouds upon the title, “ for any error or defect going to the validity of the assessment and affecting the groundwork of such tax, shall be commenced within one year from the date of such sale, and not thereafter.” Sec. 3, ch. 309, Laws of 1880. But this court has frequently held that where, as here, the error or defect does not go to the validity of the assessment nor affect the groundwork of such tax, the limitation mentioned has no application. Urquhart v. Wescott, 65 Wis. 135; Pier v. Prouty, 67 Wis. 218; Ramsay v. Hommel, 68 Wis. 12; Morris v. Carmichael, 68 Wis. 133; Wis. Cent. R. Co. v. Wis. R. Land Co. 71 Wis. 106. It follows that such statute was no bar to this action.

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