#### Vicker, by guardian *ad*litem, Appellant, vs. Byrne and wife, Respondents.

*September 19, 1913*

January *13, 1914.*

*Tax titles: Occupancy by original owner: Licensee as agent: Action to bar owner: Defenses: Deposit of taxes, etc.: Extension of time: Terms.*

1. A licensee having no estate or interest in land and yet in lawful occupancy thereof hy permission of the owner occupies in the right of the owner as his agent for the purpose of occupation only.

2. Open and obvious occupancy of a tract of land, under an oral license from the owner (the defendant), for the purpose of hauling logs in large Quantities across it and banking them upon a creek running through the tract, was “actual occupancy or possession of the defendant, his agent or tenant,” within the meaning of sec. 1200, Stats.

3. In an. action by the grantee in a tax deed to bar the original owner,' although defendant did not at the time of filing his answer make the deposit required by sec. 1200, Stats., the time within which such deposit should be made might, under sec. 2831, Stats., be extended by the court; but such extension should be conditioned upon payment of plaintiff’s costs and disbursements up to that time, thus giving plaintiff an opportunity to accept the tender and discontinue his suit.

Appeal from a judgment of tbe circuit court for Oneida county: A. H. Eeid, Circuit Judge.

*Affirmed in part; reversed in part.*

Tbe appellant, grantee in a tax deed executed May 18, 1909, upon tax certificates issued in 1906 for delinquent taxes of 1905 and conveying the northwest quarter of the northwest quarter and the southeast quarter of the northwest quarter of section 25, township 40 north, of range 2 west, brought this action to bar the original owner, making the wife of the latter a codefendant. Application for the tax deed and an affidavit of nonoccupancy were made on May 18, 1909, as required by sec. 1TT5, Stats. Eespondents answered to the effect' that no notice of. application for a tax deed was given and that said lands were occupied at the *282time the affidavit of nonoccupancy upon which the tax deed issued was filed and had been so occupied during the six months immediately preceding the date of application for said tax deed for a period of more than thirty days by the respondent named, who was then the owner of said land, and that said lands were sold for an unjust' and illegal sum in addition to the amount actually levied and assessed against said lands and in excess of the lawful and proper amount due the county at the time of the sale. Respondents did not at the time of filing this answer deposit with the clerk of the court for the use of the appellant the sum for which the lands were sold with interest, etc., as required by sec. 1200, Stats. Testimony was taken before a referee relative to the occupancy of the land in question and to the alleged illegal excess. Upon argument before the court, where it was objected that the deposit was not' made, the trial court, upon the application of respondents, made an order extending the time within which such deposit should be made; and the deposit was made.

The trial court found that one McCormick, a logger, occupied said land in his logging operations by oral permission of the respondent; that' these operations involved open and obvious possession of the northwest quarter of the northwest quarter from the fall of 1908 to the spring of 1909, and were such that any person going upon said forty-acre tract during that time could readily observe them; that' the possession and use of said land so had and made was substantially the only use and possession thereof practicable excepting possession accompanied by cutting the timber. No finding of occupancy was made as to the other forty-acre tract involved, but it was found that this tract was sold for an illegal excess of $1.06 and that the tax deed was invalid as to both tracts. Judgment' on the findings was entered dismissing the plaintiff’s complaint with costs, taxed at $465.88. No terms were imposed upon the respondents upon granting their ap*283plication at the trial to make tbe deposit required by sec. 1200, Stats.

Many errors are assigned by appellant, but they may. be summed up as follows: (1) There was no sufficient proof of occupancy to entitle the respondent's to notice of the application for the tax deed under sec. 1175. (2) Eespondents having failed to make the tender and deposit required by sec. 1200, Stats., at the time of pleading, were precluded from attacking the tax deed on account of the illegal excess in the taxes for which the land was sold, and the circuit court had no discretion to extend the time within which to make this *tender;*or, if it had such discretion, there was an abuse of discretion in not requiring payment of appellant’s costs up to the time of such tender. >

For the appellant the cause was submitted on the briefs of *Holland & Lovett.*

*William F.*Shea, for the respondents.

The following opinion was filed October 7, 1913:

TimliN, J.

• 1. There is no necessary conflict between secs. 1175 and 1200, Stats. The former forbids the issue of a tax deed except after written notice has been served on tlie owner or occupant in any case where the land shall have been in the actual occupancy or possession of any person other than the owner and holder of the certificate of such tax sale or some person claiming under him, for the period of thirty days or more, at any time within the *six*months immediately preceding the time when the tax deed upon such sale shall be applied for. Tax deeds issued contrary to this interdict are of course void. Sec. 1200 relates to defenses against tax deeds which may be made without tender of the taxes due, interest, subsequent taxes, etc. The right to attack a tax deed without such tender for lack of the notice required by sec. 1175 is there limited to cases in which “lands described in the complaint or some part thereof were in the *284.actual occupancy or possession of the defendant, his agent or tenant, or of some other person through whom he claims title for the period of thirty days or more at some time within six months immediately preceding the expiration of redemption or the six months immediately preceding the time when the deed or deeds mentioned in the complaint were taken.”

What is meant by the words “immediately preceding the •expiration of redemption” is somewhat uncertain. Sec. 1165. But it is not necessary to construe this clause in the instant case. . It appears with sufficient clearness to uphold the finding of the circuit court that the northwest quarter of the northwest quarter was for a period of more than thirty days and within the six months next preceding the application for this tax deed occupied by a licensee of the respondents for the purpose of hauling across and banking on the Butternut creek, which runs through the tract last mentioned, saw logs in large quantities. Some of these were in the creek and some in rollways on the bank. There were three small rollways and seven or eight high rollways and the creek was full of logs. The person engaged in hauling and depositing these logs asked and obtained from the respondent permission so to do. It is argued that because sec. 1200 specifies actual occupancy or possession of the defendant, his agent or tenant, occupancy by a licensee will not suffice. The occupancy by a licensee may and often is of a very temporary character, but it also may be in some cases for rather notorious and continuous purposes, such as maintaining a building or other residence thereon, cutting timber, skidding and hauling it, or, as in the case at bar, using the land as a wharf or landing place for forest products in that navigation which has been recognized and upheld by the laws of this state and consists of driving or floating logs down stream to market' or to the place of manufacture. The fundamental distinction between a tenancy and a license of this character is that the license gives no estate or interest *285in tbe land to tbe licensee and'may rest in-.parol, yet is valid until revoked by tbe licensor.. - A license of tbis kind to occupy real estate borders very closely upon a tenancy at will, but it is- not identical. _ A licensee having no estate or interest in tbe land_ and yet in lawful occupancy thereof by permission of the owner, is in^substance occupying- in tbe right of tbe owner as agent of tbe- owner for tbe purpose of occupation only. This would seem quite clear upon principle. His agency "does not extend beyond tbe mere occupation unless 'there is something more in tbe authorization by tbe owner than mere -authority to occupy, as there was in *Rockport v. Rockport G. Co.*177 Mass. 246, 58 N. E. 1017, 51 L. R. A. 779.

> “A license in relation"'to land is a bare authority to do some act or series of acts upon tbe land of another without possessing any estate therein.” *Hazelton v.*Putnam, 3 Pin. 107. Accordingly we find in *Wing v. Hall,*47 Vt. 182, 220, where tbe question arose "with referenee-to interruption of adverse possession by the entry of a licensee of tbe defendant’s grantor, the-court said:

> “A compliance with tbe plaintiff’s fifth request would have excluded those claiming under tbe Perkins title from tbe benefits of tbe acts done by Richardson, although done under a" license-from Page, and tbis would have been error. Tbe acts done by Richardson, if done under a license from Page, are to be considered the' same as if they bad been done by Page; and such acts would inure to tbe benefit of tbe party bolding tbe title under which Page took possession.”

Occupation of tbe visible and noteworthy character here described .by tbe licensee was occupation by tbe defendant within the meaning of sec. 1200, Stats.

2. But tbe learned circuit court'erred as to tbe remaining forty-acre tract in allowing tbe defendant to have tbe advantage of a tender^ and deposit, by order extending tbe time "within which to make tbe same, without imposing costs upon said -defendants as a condition of. granting such favor. It *286is contended, by tbe appellant that the court was without power to extend the time fixed by sec. 1200, *swpra,.*We cannot agree with this. Power is expressly given by statute to extend the time, within which any proceeding in an action may be taken except the time for appealing from a judgment or order. Sec. 2831, Stats. This, however, must be done upon such terms as may be just, and where the extension of time will operate to permit an act or defense not theretofore done or pleaded which will absolutely defeat the plaintiff’s action, ^justice would ordinarily require that the plaintiff’s costs and disbursements, so far as this second forty-acre tract is concerned, should be paid up to that time, thus giving the plaintiff an opportunity to accept the tender and discontinue his suit. *,*

*By the Gowrt.*— Judgment is affirmed as to the northwest quarter of the northwest quarter and reversed as to the southeast quarter of the northwest quarter, and as to the latter tract the cause is remanded for further proceedings in ac-. cordance with this opinion, the appellant to recover costs in this court.

A. motion for a rehearing was denied, with $25 costs, on January 13, 1914.