#### Brunette, Respondent, vs. Norber, Appellant.

*January 12*

February *19, 1907.*

*Husband and wife: Right of wife to acquire property: Tax titles: Actions to try title: Limitation of actions: “Grantee.”*

1. A married woman bas a right to acquire title to real property by accepting a warranty deed from a tax-title grantee and paying therefor from her own separate estate.

2. In an action of trespass it was established by the verdict of the jury and the undisputed evidence that plaintiff, a married woman, was in the actual possession of the premises in dispute from June 11, 1896, the time a void tax deed was recorded, down to and including January 24, 1906, the time when the alleged trespass was committed, and that neither defendant nor any person under whom he claimed title had paid any taxes on such premises, but on the contrary that the plaintiff had paid all the taxes thereon after the execution of the tax deed. *633Sec. 11896,, Stats. 1898, which went into effect September 1, 1898, provides that “no action shall he brought by the original owner for the recovery of lands purporting to be conveyed for .the nonpayment of taxes by a deed void on its face after the expiration of five years from the date of the recording of the tax deed, in cases where the grantee in the tax deed shall have taken actual possession of such land within two years after such recording and shall have actually and continuously maintained such possession to the end of such period of five years.” *Held,*that plaintiff’s case came within the language of such statute, and established her title.

•3. In such case plaintiff was a “grantee” within the calls of sec. 11896, Stats. 1898, although she was not named as such in the tax deed, but only as grantee in a warranty deed given her by the person to whom the tax deed was issued, the word “grantee,” in sec. 11896, being governed by the rule of construction contained in subd. 4, sec. 4971.

Appeal from a judgment of tbe circuit court for Brown county: Samuel D. TIastiegs, Circuit Judge.

*Affirmed.*

This is an action of trespass commenced January 24, 1906, to recover damages for cutting grass and timber on the lands described between September 1, 1905, and December 15, 1905. The plaintiff claims title to' such lands under a tax deed issued to one August Ysebaert, assignee of A. L. Gray, executed June 10, 1896, and recorded June 11, 189.6, and a warranty deed from said August Ysebaert and wife to the plaintiff, executed and delivered at the same time and duly recorded November 6, 1896, and actual possession under said deeds from June 11, 1896, down to the commencement of this action. The defendant answered by way of admissions, denials, and counter allegations to the effect that the defendant and the heirs at law of one Charlotte Yieau were and are the owners in fee and in possession of all the lands described; that the tax deed under which the plaintiff so claims title was issued by the city of Green Bay, and recorded more than three years prior to the commencement of this action; and that the plaintiff has not been in the actual possession of said premises or any part thereof for three years successively dur*634ing tbe five years nest after tbe recording of sucb deed, and during sucb time tbe defendant bad been in tbe actual and continued possession as sucb owner, and lienee tbat tbe plaintiff is barred from maintaining tbe action; tbat for more tban ten years prior to tbe commencement of tbis action tbe defendant and bis grantors bad owned and occupied said premises under color of title upon a written instrument, and bad been in continued, open, and notorious possession thereof under color of title, to wit, a deed from tbe original owner to M. A. Sellers, dated May 10, 1890, and from tbe beirs at law of M. A. Sellers, deceased, to defendant, dated July 1, 1905.

Tbe record evidence is quite volmninous. A number of admissions and stipulations were made by tbe respective parties. Each party moved to have a verdict directed in bis or ber favor, except tbat tbe question of damages should be left to tbe jury. After considerable parleying between tbe court and tbe counsel as to tbe question or questions to be submitted to tbe jury, counsel for the defendant stated:

“We ask tbe court bo submit to tbe jury tbe question whether or not tbe plaintiff was in possession of tbe premises in dispute during tbe summer of 1905, on tbe testimony during the season of 1905, including tbe time tbat the alleged trespass was committed.”

Tbe court thereupon inquired as to what was tbe conflict in tbe testimony, and counsel thereupon stated in effect that tbe conflict in tbe testimony was as to who* was in possession when tbe defendant acquired bis deed and took peaceable possession. The court thereafter submitted to the jury tbis question : “Was tbe plaintiff, *Johanna*Brunette, in possession of tbe premises in question when tbe defendant, *Peter*Norber, entered on the same in September and December, 1905, and cut tbe grass and trees ?” Answer of tbe jury: “Yes.” Thereupon, and “upon the law and undisputed evidence in tbe case, and tbe special verdict of tbe jury, and on tbe motion of *635the plaintiff’s attorneys,” it was thereby “ordered that judgment be entered in favor of the above-named plaintiff and against the above-named defendant for the sum of $15 damages, and costs and disbursements of the plaintiff, to- be taxed by the clerk.” From the judgment entered accordingly the defendant appeals.

For the appellant there was a brief by *Sheridan & Evans*and *John F. Watermolen,*and oral argument by *Philip Sheridan.*

For the respondent there was a brief by *Neville & Tracy r*and oral argument by *John E. Tracy.*

Cassoday, C. J.

There is no claim that the defendant was in possession of the premises prior to the time he obtained his deed dated July 1, 1905, mentioned in his answer. There was some question as to whether the plaintiff acquired the tax title in good faith or in collusion with her husband and' for his benefit. It is undisputed, however, that the record title under the tax deed was taken in the name of the plaintiff and for her benefit, and that she paid for the same from her own separate property. It is conceded that such tax deed was void upon its face. True, there is evidence tending to prove that work was performed on the land for the plaintiff’s husband, but it also appears, and is undisputed, that the-plaintiff lived thereon and paid for such services. Under the repeated rulings of this court, the right of a married woman to acquire title in the manner indicated cannot be seriously doubted. *Dayton v. Walsh,*47 Wis. 113, 2 N. W. 65; *Kendall v. Beaudry,*107 Wis. 180, 184, 83 N. W. 314; *Kriz v. Peege,*119 Wis. 105, 109, 95 N. W. 108, and cases there cited. As indicated in the statement of facts, the jury found that the plaintiff was in possession of the premises when the defendant entered upon the same and cut the grass and trees as mentioned. Such finding is amply supported by the evidence. The value of such grass and trees appears from the *636testimony of tbe defendant and is undisputed. It is established by the verdict of the jury and the undisputed evidence that the plaintiff was in the actual possession of the premises from the time the tax deed was recorded down to and including the time when the alleged trespass was committed. During that time neither the defendant nor any person under whom he claimed title paid any taxes on the premises. On the contrary the plaintiff paid all taxes thereon after the execution of such tax deed. In view of such undisputed evidence and such verdict, the question recurs whether the plaintiff has established her title to the premises by virtue of- such actual possession under such void tax deed during the time mentioned. The general purpose of the statutes in respect to taxes is to secure the early payment of the same and to bar all controversies in regard to such taxes within certain limited periods. Not only are the grantee in a tax deed and those claiming under him limited to certain periods within which to enforce their claim against the land, but the former owner and those claiming under him are also limited to' certain periods within which to avoid such tax deed. Secs. 1187-1189^ Stats. 1898. Among the limitations upon the former owner is an amendment proposed by the revisers of the Statutes of 1898 and adopted by the legislature, which declares:

> “No action shall be brought by the original owner for tire recovery of lands purporting to be conveyed for the nonpayment of taxes by a deed void on its face after the expiration of five years from the date of the recording of the tax deed, in cases where the grantee in the tax deed shall have taken actual' possession of such land within two years after such, recording and shall have actually and continuously maintained such possession to the end of such period of five years.” Sec. 1189b, Stats. 1898.

It is said in a note by the revisers that such amendment was “intended to apply such limitation even if the tax sale was without jurisdiction, since the limitation depends wholly on color of title and actual possession of part or all of the land in question.” See cases there cited. The case presented *637comes squarely witbin tbe language of tbe statute quoted. True, tbe plaintiff is not named as grantee in tbe tax deed, but is named as grantee in tbe warranty deed given to ber by tbe person to whom sucb tax deed was issued. Our statute declares :

> “Tbe word ‘grantor’ may be construed as including every person from or by whom any freehold estate or interest passes in or by any deed; and tbe word ‘grantee’ as including every person to whom any sucb estate or interest passes in like manner.” Subd. 4, sec. 4971, Stats. 1898.

See. 1189b went into effect September 1, 1898, only a little over two years after tbe recording of tbe tax deed in question. It clearly applies to this case, and establishes tbe plaintiff’s title under tbe tax deed and bars tbe defendant as tbe original owner.

We find no reversible error in tbe record.

*By the Court.*— Tbe judgment of tbe circuit court is affirmed.