Woodbury v. Shackleford

In the construction of statutes of limitation, general words are to haye a general operation; and where there cannot he found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment. No exceptions can be claimed in favor of particular persons or cases, unless they are expressly mentioned. Under sec. 12S, ch. 15, R. S. 1849, where land was sold for taxes in 1844 and 184S, and tax deeds executed and recorded in 1847 and 1851, and the land remained unoccupied for more than three years after such recording, the owner of the original title, at the time of such recording, being a minor, and not having redeemed within one year after becoming of full age, his right of action against the holder of the tax title, to recover possession of the land, was barred. Section 12, ch. 127, R. S., 1849, which, in providing for the limitation of actions relating to real estate, declares that “if any person entitled to commence any action in this chapter specified * * be, at the time such title shall first descend or accrue, within the age of twenty-one years,” &c., “the time during which such disability shall continue, shall not be deemed any portion of the time in this chapter limited for the commencement of such suit * * ; but such person may bring such action * * after the said time so limited, and within ten years after such disability is removed,” is not applicable to actions by the former owners of land against tax title occupants; the statutes relative to the .sale of lands for taxes prescribing different limitations iu such cases. To constitute a valid offer to redeem laud sold for taxes, the money must be tendered to the proper officer unconditionally, for the use of the purchaser, his heirs or assigns ; and where one of two owners in common tendered the requisite amount to redeem the whole land, but the officer, at his request, refused to receive the money, merely to enable him to have his right to redeem the whole of the premises tested by an action against such officer; Held, that there was no valid offer to redeem.

ERROR to the Circuit Court for Dane County. The action below was ejectment by Collins and Amelia Shackleford against Woodbury, commenced in February, 1864. Title to the premises vested in Barlow Shackleford, March. 14, 1842 ; and he died September 22, 1847, leaving the plaintiffs his sole heirs. Said Collins became 21 years of age in June, 1860, and said Amelia in September, 1863. Woodbury's lessor claimed under tax sales made in 1844, 1848 and 1859 respectively, and deeds executed thereupon in 1847, 1851 and 1862, and recorded shortly after their execution. After these facts had been proven at the trial, plaintiffs introduced, under objection, evidence of sundry irregularities in tire tax proceedings on wbicb the several tax deeds were founded. The clerk of the board of supervisors of said county, as a witness for plaintiffs, testified that on the 21st of January, 1864, Amelia Shaclde-ford offered to redeem the whole of the premises in dispute, and that witness refused to receive the money and give a certificate of redemption for the whole of said premises. On cross-examination, he said that the offer was made by plaintiff’s attorney, who stated to witness that there might be some doubt whether he bad a right to redeem the whole of the premises, and he wished to have the question legally settled, and it could be more easily done by witness’s refusing to take the money; and for the purpose of having the question settled, witness refused to take it, and this was the only reason he had for doing so: said attorney proposed to test the question by mandamus in the Supreme Court, and af-terwards served on witness some papers for that purpose. The money was not left with witness. It was proved that the money so offered was afterwards put into a package by itself in the safe of said attorney, and marked, and kept there separate from other money, and that he had it then present in court; but that neither the clerk of the board of supervisors nor any one else had been informed where it was kept. The court instructed the jury that the tax deeds were impeached by the evidence so that they did not pass title to the defendant; that the plaintiffs’ right of action was not barred; and that if they found that plaintiffs had shown title to the land in question, they should find for them. At the request of defendant, the court further instructed the jury as follows : 1. “If Collins /Shackleford, at the time the alleged offer to redeem was made by Amelia Shackleford, was of the age of twenty-four years, he had lost his right to redeem his interest in the lot, and she could not lawfully redeem anymore than her portion.” 2. -“If the clerk of the board of supervisors refused to take the money offered in redemption solely at the instance of the agent or attorney of Amelia Shackleford, to enable him to institute a suit in court to test her right to redeem the whole lot, and the money was taken away by such agent and kept separate from any other money, but without informing the clerk or any one interested in the premises where they might get it, these facts would not constitute a redemption of the premises.” The court refused the following instructions asked by defendant: 1. “ If at the time of the recording of the tax deeds dated in 1847 and 1851, the plaintiffs were of the age of twenty-one years, they would be barred from recovering the premises in question, unless they brought their action-for the purpose within three years next after the recording of the tax deeds; and the rule is the same as to these plaintiffs, though they were infants at the time of the tax sales, the execution of the tax deeds and the recording thereof, unless within the time allowed by law they made a valid redemption of the premises.” 2. “If Collins Shackleford lost his right of redemption before Amelia Shackleford offered to redeem the lot, and the tax deeds dated in 1847 and 1851 were recorded more than three years before the commencement of this action, then your verdict, under the pleadings in this action, must be for the defendant.” 3. “ The plaintiffs had no right to redeem from the sale of 1844, if it was made in the lifetime of their ancestor, Earlow Shackleford.” Verdict for the plaintiffs. Motion for a new trial, on the ground of errors in the admission of evidence, and in the instructions to the j ury, and also on the ground that the verdict was contrary to law and the evidence. Motion denied; and j udgment upon the verdict; to reverse which the defendant took his writ of error. to the point that the three years statute of limitation was against minors in like manner as against persons of full age, subject only to the minor’s right to redeem within one year after coming of age, cited Laws of 1840, p. 40; Laws of 1844, p. 22, sec. 12; R. S. 1849, cb. 127, sec. 12, and ch. 15, secs. 128, 104; Laws of 1859, cb. 197, and cb. 22, secs. 18-20. Such statutes run against infants unless there is an express exception contained in the act. Bechford v. Wade, 17 Yesey, 87 ; Buchlin v. Ford, 5 Barb., 893 ; Hall v. Bumstead, 20 Pick., 2 ; Frwin v. Turner, 1 Eng. (Ark), 14; Pryor v. Byburn, 16’Ark, 694. 2. Amelia Shacldeford might have redeemed her share separately. R. S. 1849, ch. 15, sec. 83; Laws of 1859, ch. 22, secs. 18-20. Under such circumstances redemption and payment by her would not enure to the benefit of her co-heir. Sidle v. Walters, 5 Watts, 389. The privileges of infancy are purely personal, and no other person can claim any advantage of them. 2 Johns., 279; 5 id., 160; 13 Mass., 237, 371; 10 Serg. and R., 114. If the claims of one of two heirs who are tenants in common, and join to recover the whole estate, is barred, there can be no recovery; but the one whose right is not barred may sue alone, and recover his share. The disability that protects his share is no protection to that of his co-heir. Moore v. Armstrong, 10 Ohio, 11; Bronson v. Adams, id., 135; Thomas v. Machir, 4 Bibb, 412; Wade v. Johnson, 5 Humph., 117; Lewis v. Barksdale, 2 Brock, 436; Boe v. Bowlsion, 2 Taunt., 441; Simpson v. Shannon, 3 A. K. Marsh., 1266 ; 2 id., 384; 1 id., 39 ; R. S. 1849, ch. Ill, sec. 9. The question is the same in relation to redemption, as to the bar created by the statute of limitations. A failure to redeem by one creates a bar as to him, and the personal privilege of a co-heir not barred cannot restore the other to what he has lost. Bronson v. Adams, supra. As to the objection that the ancestor, at the time of his death, may have been largely indebted, and the real estate redeemed by one heir may all be seized and sold to pay the debts, and such heir be without remedy, unless he is allowed to redeem the whole and cause the interest of his coheir, who fails to redeem, to be subjected to the burden equally with his own, it will be time enough to dispose of such a case when it actually arises; but the rule so firmly establish-listed- as to the statute of limitations would bring about the same result, should one of the heirs refuse to join to recover the estate, or to sue separately for his share,' before his right should be barred. A court of equity would doubtless afford a remedy at the suit of the heir apprehending such a result, against the delinquent and other parties in interest. 1. The tax deeds of 1847 and 1851 are void on their face, because executed, one in the name of Burdick, instead of the Territory of Wisconsin, (sec. 23, p. 49, Ter. Statutes of 1839) ; the other in the name of Giles, instead of the county of Dane (sec. 109, ch. 15, R. S. 1849); so that, as the land was vacant for more than three years from the recovery, the statute of limitations did not run. Lain v. Shepardson, 18 Wis., 59. 2. The plaintiffs being infants at the time of the recording of the deed, the general statute of limitations then and since in force, exempted them during infancy from its operation. Ter. Stat. 1839, p. 260; R. S. 1849, ch. 127, sec. 12. This action is included in that chapter. Sec. 1. It was a general provision excepting infants from the ■ operation of limitation laws during minority. The general limitation was twenty years, and the legislature afterwards simply provided that in certain cases, to wit, to recover against tax deeds, the suit must be commenced within three years' instead of twenty, but does not change the general exceptions by reason of disability, or repeal those provisions expressly or by implication. Then ch. 197, Laws of 1859, provided that such suits in all cases must be brought within three years from that time and not afterwards. That operated to repeal all existing laws. On its repeal in Eebruary, 1861, there was no special act in force on the subject, until April 2, 1861, when the act now in force was published. Osborn v. Jaines, 17 Wis., 573. But the plaintiffs were not barred under this last act, having brought their action within the time there limited. Counsel also contended that allowing the land to go to sale again for taxes, and taking a new deed on the subsequent sale, is a waiver of all claim under the old deed.