Wright v. Wing

The purchaser at a tax sale under chapter 66, Laws of 1854, or under chapter 22, Laws of 1859, was entitled to a deed at the end of three years from the sale in all cases where the land remained unredeemed at that time, although the lands of minors, married women, &c., were subject to redemption after the delivery • of the deed. The provision in those statutes requiring the clerk of the board of supervisors to advertise unredeemed lands six months before the time limited for their redemption, stating among other things the interest calculated to the last day of redemption, and specifying that day, must be held to refer to the period fixed for redemption in ordinary cases, and after which the purchaser would be entitled to a deed, and not in any case to the period within which the land might be redeemed by an infant owner or other person having the privilege of redemption after the issue of the deed. An action against the grantee in a tax deed executed under either of said statutes, to restrain him from entering upon the land, cutting timber, &c., cannot be maintained by the original owner, though still entitled to redeem, unless he has redeemed in fact or offers to do so.

APPEAL from tbe Circuit Court for Shawanaw County. The plaintiff, who was at the coiiimenccment of the action, and had been for more than seven years previous, a married woman living with her husband, commenced this action in 1863 to restrain the defendants from setting up any claim to certain lands in Shawanaw county (of which she claimed to be the owner in fee), and from cutting and hauling away the timber thereon; to restrain them from prosecuting certain actions for trespass commenced by them against persons employed by the plaintiff to enter upon the land, cut timber thereon, &c., for her; and to havé certain recorded tax deeds, under which they claimed, declared void, so as to remove the cloud created by them upon the plaintiff’s title, &c. The tax deeds mentioned in the complaint were executed as follows: one on the 8th of March, 1862, upon a sale made in April, 1858 ;■ a second on the 31st of December, 1862, upon a sale made in April, 1859; and a third in June, 1863, on a sale made in April, 1860. The complaint avers that the deeds were “ in due form of law,” but that they were invalid because issued less than five years from the dates of the respective sales. The answer alleged that the defendant Nathan Paine was the only one of the defendants who claimed any title to the land in controversy under said tax deeds; that he then was and for more than three years had been a resident of this state, and that in July, 1861, he entered into the military service of the United States for three years, and still remained in that service ; that the other defendants occupied the land and were engaged in cutting and hauling away timber therefrom under authority from him; that the land had not been redeemed at the commencement of the action by the payment of the taxes for which they were sold in 1858; and that none of the taxes for which it had been sold, as mentioned in the complaint, had ever been paid. On the filing of the complaint the circuit court granted an injunctional order as prayed for. After the filing of the answer and of an affidavit by one of the delendants, the court made an order dismissing the action as to Nathan Paine, and striking out so much of the injunctional order as restrained the defendants from prosecuting actions against persons employed by the plaintiff to cut timber upon the premises in dispute. From this order the plaintiff appealed. A married woman may redeem her lands at any time within five years from the sale, and before a valid deed is issued and recorded. B. S. 1849, ch. 15, secs. 102, 104; B. S. 1858, ch. 18, sec. 153 ; Laws of 1859, ch. 22, secs. 18, 20. But because sec. 1, ch. 66, Laws of 1854, declares that the holder of a certificate of a tax sale, “ after the three years for the redemption ” of the land have expired, may perfect the title, &c., it is contended by counsel for the respondents that the deed may be issued in all cases at the expiration of three years, but that minors, married women &c. may redeem after the record of the deed- But the same act goes on to declare the effect of the deed so given, and, without any exceptions in favor of minors, married women or others, declares that such deed, when recorded, shall have the effect to vest in the grantee therein all the estate of the former owners in fee, and all the interest of the county; and this court has decided that deeds given in pursuance of that act cannot be invalidated by showing any matters except those specified in section 2 of the act of 1852, to wit, that the lands were not liable to taxation, or that the taxes were paid or the land redeemed. And it is a well established rule of interpretation, that the strict letter of the law must yield to the true intent and meaning as collected from the whole context, when the strict letter would lead to possible injustice, contradiction and absurdity. Smith’s Comm,, secs. 515, 517 et seq.; 1 Kent, 462 ; People v. Utica Ins. Co., 15 Johns., 380 ; Whitney v. Whitney, 14 Mass., 92 ; U. 8. v. Fisher, 2 Cranch, 400 (358); Report of Judges, 7 Mass., 523. Again, the evils to be remedied, and which were in the minds of the legislature when passing the act of 1854, were as follows : 1. The act of 1853 had deprived the clerk of the county board of the power to issue tax deeds at the expiration of the time to redeem, and had substituted the tedious, expensive and uncertain process of foreclosure of the tax lien by suit in chancery. 2. There was no uniform, well known and authoritative form for a tax deed. 3. There was a general want of confidence in tax titles, deterring men from dealing in certificates and throwing the burden of the delinquent lands upon the counties. All these evils were in the legislative mind and were remedied partially at least by that act. But the period of redemption allowed by previous statutes to married women and others over whom our laws have always assumed a tutelary charge, was not an evil, was not so considered, and has never been the subject of-discussion in our legislature; nor could any legislature we ever had, have been induced to. pass the act. in question, had they supposed that by so doing they were placing femes covert, infants and non compotes upon the same footing in this respect as all other persons. Again, the whole context shows the intention of the act plainly enough. Sec. 1 first repeals the repealing section of the act of 1858, and revives acts and parts of acts thereby repealed ; and sec-' ondly retains the other provisions of the act of 1853 as a cumulative remedy; and thirdly gives the certificate holder his option either to foreclose the tax lien or to take a tax deed as formérly. Among the acts so revived is section 109 of chap. 15, E. S. 1849 (re-enacted in 1859, chap. 22, sec. 25), which is as follows: “ If any lands sold for taxes shall not be redeemed as aforesaid, the clerk of the board of supervisors of' the county where the same was sold shall, after the expiration of the time prescribed by law for the redemption thereof ” execute a deed, &c. Was it the intention of the legislature to revive and repeal this section in the same breath ? They revived it; they modified it so as to remedy the evils complained of at that time by declaring the form and effect of the deed; and this modification left nothing remaining of the section so revived except the part above quoted. Did the legislature also intend to repeal that part, and to work so radical a change in the taxing laws as to allow a tax deed to be issued and recorded against any one’s land before the expiration of the period of redemption for the tax sale ? It is difficult to discovor the advantage to result from such a change, but the evils are glaringly apparent. The deed, if subject to redemption thereof, would still remain on the record, a cloud upon the title, and would call for the equitable interposition of the court to remove the cloud. The statute of limitation commences to run from the recording of the deed, and would, therefore, in the case of minors, have run its full term in many cases long before the time to redeem would expire, thus leaving the infant no option on arriving at full age but to redeem; if indeed the right to redeem is preserved by the literal interpretation. Again, the phraseology is peculiar. The language is “ after the three years for the redemption thereof shall have expired.” The language of section 109, ch. 15., E. S. 1849, is, “ after the expiration of the' time prescribed by law for the redemption thereof; ” and it is but resorting to the ordinary rules of construction in such cases to construe the two acts together, and to substitute .the word “ time ” for “ three years ” in the act of 1854, so as to • express the evident intention of the whole act. Had the word “ the ” been omitted, there would be more room for the opposite construction. But, whichever construction shall be adopted, the law as it stood when the first, and all succeeding tax deeds were given did not allow a tax deed to be issued until after the expiration of the time to redeem. The act of 1854 was repealed by that of 1859, if not by the revision of 1858, and the first deed was issued March 8th, 1862. At that time sec. 25 of chap. 22, Laws of 1859, was the governing section. This act was constitutional. It interfered with no vested rights. It did not extend the period of redemption as in the case of Bobinson v. Howe, 13 Wis., 341; for, according to the theory of the defendant’s counsel, the right to redeem remained perfect after the recording of the deed until the five years had elapsed, and therefore no substantial right of the defendant’s was interfered with by changing the law so as to make the deed issuable only after the expiration of the time to redeem. No valid deed having been issued upon these lands, the plaintiff’s right to redeem still continued. R. S. 1849, ch. 15, sec. 102; Laws of 1859 ch. 22, sec. 18.