Lombard v. McMillan

Maeshall, J.

• There are several questions presented on this appeal proper for consideration, some necessary and some not. This opinion will not be confined strictly to those necessary.

1. It is contended on the part of the appellant that ch. 278, Laws of 1883, for failure to comply with which the trial court decided that the action was prematurely brought and should be abated, is unconstitutional and void under art. I, sec. 9, which provides that “ every person is entitled to a certain remedy in the laws, for all injuries or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely and without being obliged to purchase it, complete^ and without denial, promptly and without delay, conformably to the laws.” A large number of decisions are brought to our attention from other states to show that statutes there which require the payment of illegal taxes as a condition precedent to the right to institute an action to avoid taxes, or tax deeds based thereon, offend against this constitutional safeguard; but such adjudications-do not apply here. The act in question does not require the former owner of lands, as a condition for bringing an action *633 to void an illegal tax deed based tbereon, to part absolutely with anything, but only as an earnest of good faith that he will finally abide by the decision of the court respecting the payment of legal taxes that may be determined to be equitably chargeable to the lands requires the deposit mentioned in the act. The essential principle involved has been repeatedly challenged in this court, and as often sustained. Flanders v. Merrimack, 48 Wis. 567 ; Wakeley v. Nicholas, 16 Wis. 588 ; Smith v. Smith, 19 Wis. 615 ; Finney v. Ackerman, 21 Wis. 268 ; Knight v. Barnes, 25 Wis. 352 ; Philleo v. Hiles, 42 Wis. 527 . In both legal and equitable actions, legislation requiring a deposit of taxes, void simply on the ground of irregularities, but not inequitable, as a condition of recovery, has been sustained, as the cases referred to abundantly show. In Lombard v. Antioch College, 60 Wis. 459 , the act in question was challenged, the contention being made, now pressed upon the attention of the court,— i. e. that the requirement to deposit taxes equitably chargeable to land as a condition of recovery in an action to avoid a tax deed based thereon cannot be extended so as to require the deposit of taxes on lands paid by the tax-title claimant as a condition precedent to the right of the former owner to institute an action to avoid such tax or a deed based thereon;. and in respect thereto this court decided, in effect, that ch. 278, Laws of 1883, cannot be held unconstitutional because it requires the plaintiff to deposit the taxes which have-been paid on the lands by the party claiming the same as a condition of his right to maintain an action to avoid a tax title based thereon, under which the party claims who has paid such taxes, without substantially overruling the decisions of this court holding that such deposit may be required after the action has been brought, as a condition of recovery, and that, the court having settled the question that the former owner who brings an equitable action to avoid a tax deed for mere irregularities in tax proceedings must tender *634 or offer to pay the taxes properly clue upon the land, on account of which the tax deed was issued, as a condition of recovery, there can be no doubt as to the power of the legislature to apply such equitable rule, as a condition of the right of a party to avail himself of his legal right of action, to accomplish the same object sought by the equitable action. We do not perceive how it can seriously be contended but that the very question here presented was passed upon in Lombard v. Antioch, College, and determined against appellant’s contention. No new light is shed on the question by the briefs of counsel or the study which we have been able to give to the subject.

2. It is further contended by the appellant that the deposit required by the act of 1883, being a mere condition precedent to the institution of the action, a failure to comply therewith could only be taken advantage of by plea in abatement, and that defendant McMillan waived such condition by failure to tender such plea. Respondents insist that failure to make the deposit was not a matter in abatement, but in bar; therefore, that McMillan could insist upon such condition under his general denial.

The distinction between a plea in abatement and a plea in bar is that the latter goes to the merits, and, if in accordance with the facts, shows that the plaintiff cannot maintain the action at any time, while the former sets up matter only tending to suspend the suit for the time being, without preventing the recommencement of the same at some future time when the facts relied upon for such suspension no longer exist. Chitty, PI. (16th Am. ed.), 462. The mere statement of the distinguishing characteristic between a plea in abatement and a plea in bar sufficiently shows that the matter in controversy was in abatement, strictly so called. It did not go to the cause of action at all, but only fixed terms upon which the remedy to enforce the cause of action could be made available. This was not the mere premature bring *635 ing of an action which, may be taken advantage of either by plea in abatement or by motion for a nonsuit, where the defect does not appear upon the face of the complaint, under the rule referred to in Millett v. Hayford, 1 Wis. 401 , citing 1 Chitty, Pl. 453. Such rule applies only where the matter is such that it goes to the cause of action or to the jurisdiction of the court; then it may be pleaded either in bar or in abatement, or taken advantage of by motion for a nonsuit. Benthall v. Hildreth, 2 Gray, 288 ; Nat. Bank v. Stanton, 116 Mass. 435 ; Franklin Springs Institution v. Reed, 125 Mass. 365 . But where the cause of action is complete, ■though something is yet to be done as a condition of the right to enforce such cause of action, the nonperformance of such condition is held to be a matter to be taken advantage of by abatement only, and must, therefore, be pleaded specially, or it is waived. Eailure to keep in mind this distinction between matter in abatement only and matter which may be taken advantage of either in abatement, or in bar, or by way of motion for a nonsuit, is likely to lead one astray, for, without such distinction, there is an apparent conflict in the authorities respecting how the objection must be raised. Eor instance, the general doctrine will be found laid down in 1 Ency. of PI. & Pr. 22, to the effect that the objection that the action is prematurely brought must be raised by plea in abatement unless taken by demurrer (citing Collette v. Weed, 68 Wis. 428 ), while the text cited from Ohitty, the Massachusetts cases in support of the same, and the early case of Millett v. Rayford, supra, in this court, to which may be added Noonan v. Bradley, 9 Wall. 394 , state apparently a contrary doctrine, but all are in harmony when the distinction is kept in mind between matter going to the jurisdiction of the court or to the cause of action itself, and matter affecting the remedy by way of qualification or otherwise.

There does not appear to have been any very decided ex *636 pression of opinion on the question in this court in the-earlier cases. In Jaquish v. Ithaca, 36 Wis. 108 , the action was brought against a town without having first presented the claim to the town board of audit. The statute provided! for such presentation as a condition precedent to the institution of the action. Failure to comply with such condition did not appear upon the face of the complaint, and was not pleaded in abatement. In discussing the subject Mr. Justice Lyoh said: It only goes in abatement of the action, and should have been made on the trial, by a motion for a nonsuit or in some other proper way. “ Indeed, it may well be argued that this matter in abatement should have been pleaded,” — citing Gould, PI. ch. 5, § 153, to the-effect that all matters in abatement, if not pleaded, are waived. But in Sheel v. Appleton, 49 Wis. 125 , the charter of the city required, as a condition precedent to the bringing of an action upon any claim against such city, the presentation of such claim to the common council for allowance. The action was brought without reference to such provision. No objection was taken by demurrer or plea in abatement, and this court said that the statute prescribing the conditions upon which the action might be brought went only to the capacity of plaintiff to sue, not to the jurisdiction of the court or the cause of action; hence the objection could only be taken by plea in abatement. This was followed by Collette v. Weed, supra. In Hendy v. Soule (Dist. of Cal.), Deady, 400 , the precise question was decided in a similar case. The action was to recover taxes, paid to the revenue collector, alleged to be illegal. The United States statute governing the subject (sec. 19, Act of July 13, 1866, ch. 184), provided as follows: “ No suit shall be maintained in any court for the recovery of any tax alleged to halve been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue.” The action was brought without reference to- *637 such, statute. 3STo objection was taken by plea in abatement, •or by demurrer. The court, by Deady, J., said, in effect, that such statute does not limit the jurisdiction of the court, but qualifies the right of plaintiff to maintain bis action. The right of action exists independent of the statute, and the objection that the prescribed condition was not performed, which qualifies the remedy by suit to recover the tax wrongfully collected, could only be taken advantage of by plea in abatement.

From the foregoing we conclude that the condition prescribed by cb. 278, Laws of 1883, precedent to the commencement of a suit by the former owner of lands, to avoid a tax •deed thereon, did not affect an existing cause of action to void such deed, or go to the jurisdiction of the court to entertain such cause of action, but qualified or restrained an existing right to the remedy to enforce such cause of action; hence, the nonperformance of such condition could only be taken advantage of by demurrer, if such failure appeared upon the face of the complaint, and, if not, as in this case, by plea in •abatement. Mo such plea having been interposed by defendant McMillan, the benefit of such statutory restraint upon the remedy was effectually waived and lost for all the purposes of the action unless in effect restored by the bringing in of the state as a defendant.

3. The next important question is, Was the state properly ■brought in as a defendant and permitted to plead, in abatement of the action, nonperformance of the condition precedent to the institution or maintenance thereof prescribed ■by the act of 1883? The state conveyed these lands, and received its grantee’s money therefor. Its conveyance purported to pass the title to such grantee. It was under some •obligation, the nature of which it is not necessary here to determine, to make such title good or refund the money paid therefor. As the learned circuit judge said, it was also interested in enforcing collection of the public revenues. *638 These conditions, obviously, in the judgment of the legislature, were sufficient to warrant the passing of the act of 1885, authorizing the state to be made a party for the purpose of protecting the interests of the person claiming title under its conveyance, and in that way of protecting its own interests. We fail to see wherein such act contravenes any constitutional right of the plaintiff. He failed to comply with the conditions of the act of 1883, after the passage of the act of 1885, before the plea in abatement was filed by the state. That was a matter of his own choosing. The act expressly provides for mating the state a party defendant in actions pending at the time of its passage, and obviously to subserve the purposes of the law, heretofore stated. Now, to say that it was error to allow the state to come in, pursuant to such act, and interpose the plea in abatement, is, in effect, to nullify such act. We find nothing in ch. 74, Laws of 1889, to change the relation of the state to the subject in this action. It provided that all titles obtained by the state, pursuant to the law of 1885, to lands circumstanced as those here in suit, should vest in the grantees of the state or those claiming under such grantees. The purpose of the deed taken under the act of 1885 being obviously, as before stated, to strengthen the title of the grantees of the state so far as relates to lands theretofore sold, its interest in maintaining the title of such grantees was just the same after the act of 1889 as before. No reason is perceived why such act can cut any figure in the matter.

It follows, from the foregoing, that the state was properly made a party defendant, that its plea of abatement was properly sustained by the trial court, and that the judgment in abatement of the action was properly rendered.

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