Osborn v. Jaines

By the Cov/rt, DixoN, C. J.

Ejectment for a tract of land in the county of Dane. The defendant claims title under a tax deed, and the sufficiency of that title is the only question. The land was sold in April, 1853. The deed issued May 26th, and was recorded May 30th, 1856. It was admitted, on the trial, that the defendant had been in possession and was so still, and that he had made valuable improvements on the land. How long he had been in possession does not appear. The case was argued in connection with Smith vs. Cleveland, already decided, and as if it presented the same questions. But we do not think it does. The bill of exceptions is not so framed as to present the questions upon which that case turned, if they were in fact involved. The record recites that “ the plaintiff, to maintain the issue on her part, offered in evidence certain records from the office of the clerk of the board of supervisors, and also from the office of the county treasurer, in order to impeach the legality and validity of the said tax of 1853, "and the proceedings upon which said land was sold for taxes; to which the defendant, by his attorneys, *575 objected, for the reason that more than three years had elapsed since the issuing and recording of said tax deed, and the plaintiff was therefore barred by the statute of limitation from bringing his action, or impeaching or contesting the validity of the tax sale or of the deed under it. But the court overruled the objection, and admitted the evidence, to which decision the defendant excepted.”

This is all that the bill of exceptions contains as to the evidence, and it is manifest that we cannot pass upon the nature or effect of it. We have no information upon the subject. The records introduced may have shown that the taxes were paid, or the lands redeemed. The treasurer and clerk were required to keep a record of such facts, if they existed ; and at all events we cannot determine the sufficiency or admissibility of evidence until we know what it is.

Besides, the time of the sale is not shown. The answer avers it to have been on or 'about the 12th of April, 1853, but when it was proved to have been made we are not informed. The act of April, 1852, was repealed in several important particulars by the act of March 31st, 1853, as will, upon examination, be seen. It appears from the schedule of dates appended to the laws of 1853, that the latter act was published on the 18th day of April of that year. It becomes very material, therefore, to know whether the sale took place before or after that date.

But the other question, likewise argued in Smith v. Cleveland, though not decided, is fairly presented by the record, and must be determined. It seems to have been the only question made and discussed in the court below. It is, whether the limitation prescribed by the fifth section of the act of April 2, 1861, can be applied to this action. Laws of 1861, chap. 138. At the time the tax deed was executed and recorded, the period of limitation was fixed at three years frbm the recording. R. S., 1849, ch. 15, sec. 123. This period was continued by the statutes of 1858. R. S., ch. 18, sec. 158. Also by the act of *576 February 22, 1859. Laws of 1859, chap. 22, sec. 38 ; R. S., cb. 191, sec. 13. But the second section of the act of March 19, published April 8, 1859, extended the time in which the former owner or owners, or any person claiming under him or them, might maintain an action for the recovery of land theretofore sold and conveyed for th# non-payment of taxes, to three years from the passage of that act. Laws of 1859, chap. 197. This section was repealed by the act of February 14,1861. Laws of 1861, chap. 24 Section five of the act of April 2, 1861, above referred to, reads as follows: “ No action shall be commenced by the former owner or owners of any lands, or by any person claiming under him or them, to recover possession of land which has been sold and conveyed by deed for non-payment of taxes, or to avoid such deed, unless such action shall be commenced within three years next after ^the recording of such deed.” This is the only special statute now in force upon the subject.

The power of the legislature to extend the period of limitation as to all causes of action not yet barred, is not denied. It may do so at pleasure. But its power by retroactive laws to cut off the remedy or bar the action upon an existing cause, instanter, or without giving a reasonable time to prosecute, is denied. Both these propositions are old and well settled. At the time of the passage and publication of the act of March 19, 1859, the remedy of the plaintiff was still open. The bar of the previous statute, had the same remained in force, would not have attached until the 30th day of May following. The effect of section 2 of the act of March 19, was, therefore, to continue the remedy until the expiration of three years from the time of its passage, or to the 19th of March, 1862. For although this section has been held inoperative as to causes of action then already barred, we suppose there can be no doubt of its validity as to those which were not so. It was good as to all cases within the reach of legislative action. But before the expiration of this extended time, namely, on the 14th of February, *577 1861, the section was repealed. That left the cases within its operation without any special statute. It brought them within the dominion of the general statute, which prescribes a limita- • tion of twenty years. R. S., ch. 138, sec. 2.

Then came the act of April 2, 1861, the language of which has been repeated. It declares that the action shall he commenced within three years next after the recording of the deed. At that time it was three — nearly five — years since the recording of the defendant’s deed. Hence this act cannot be applied. The effect would be not only the instantaneous destruction of the plaintiff’s remedjr, but, if a thing so impossible can be supposed, the destruction of it nearly two years before the enactment of the statute.

Judgment -affirmed.