Truesdell v. Rhodes

26 Wis. 215

• Court: Wisconsin Supreme Court
• Decided: June 15, 1870
• Status: Published

Opinion

Dixon, C. J.

The complaint states a good cause of action under ch. 22, Laws of 1859, in pursuance of which the action is instituted. It contains every allegation, matter and thing required by section 37; and that is sufficient. It shows that the appellant is a proper party defendant under the provisions of section 35, as one of the heirs-at-law of William Rhodes, deceased, who owned the land at the time of the tax sale. The complaint being thus sufficient under the statute, the question is raised whether it is not rendered multifarious-or double, and therefore demurrable, by reason of the other matters contained in it, namely, the allegations respecting the tax deed for the taxes of 1857, and the title claimed under it. If that deed could, under the circumstances, have any force whatever as against the deed to the plaintiff Mrs. Truesdell, or if it could in any manner affect her title by virtue of her deed, there might be something in the objection ; but as it is, we think it wholly untenable. The deed to Mrs. Truesdell was for the taxes of 1858, one year later, which, it is well settled, cuts off all prior titles. 19 Wis. 74; 22 Wis. 225. In setting forth, therefore, the deed for the taxes of 1857, the steps taken to obtain it, and the title claimed under it, the complaint states no cause of action against the appellant as for removing a cloud from Mrs. Truesdell's title on this ground. Such deed does not and from its very nature cannot, constitute a cloud upon her title. As every tax deed recites upon its face the date or year of the levy of the taxes, it must always appear, by the record in the register’s office, whose deed is under the junior levy, and consequently whose title is paramount. This circumstance prevents every deed for prior taxes, it is immaterial when executed or when recorded, from operating as any impediment or obstruction in the way of a title acquired by virtue of a subsequent levy or assessment and sale for taxes. The deed here, under the prior levy, was executed and recorded after that to the plaintiff Mrs. Truesdell, which may have led to the supposition that it was in some way to be preferred, dr operated as a cloud upon her title; which is clearly not so. In this respect, therefore, the allegations of the complaint are wholly impertinent. They set forth no cause of action or ground for relief, and consequently afford no foundation for demurrer that several causes of action have been improperly united. To sustain a demurrer for this reason, the complaint must contain two or more good grounds of suit, which cannot be properly joined in the same action, against the same defendant or different defendants. The rule is the same as that formerly prevailing in the court of chancery. See Bassett v. Warner, 23 Wis. 689-90, and cases there cited.

Another ground of demurrer is, that there is a defect of parties defendant. There may be an excess, but certainly no defect. James Ozanne, Jr., may be one defendant too many; but that the demurrer does not reach. It is given by law only for a defect, and not for an excess. The complaint states no cause of action against him; but for that he must demur, or ask to be dismissed, and not his co-defendants. In support of this objection, that there is a defect of parties defendant apparent on the face of the complaint, the position is that the “unknown heirs” of William Rhodes, deceased, should be made defendants by name, and that the proceeding against them as “ the unknown heirs of William Rhodes, deceased, and the unknown owners ” of the land in dispute, is unauthorized. This is a mistake on the part of counsel. Section 46 of the act under which this suit is instituted, expressly authorizes the proceeding against them as “ unknown ownersand the complaint, which alleges the fact, is in this respect sufficient.

By the Court. — Order affirmed.