#### Eaton vs. North.

Tax Deed: *Earlier one cut off by a later one.*— Ch'antee *of tm dee d, not in possession, may abandon all claim under that and take a deed under subsequent sale.*

1. A sale of land upon a junior levy and assessment of taxes cuts off an earlier tax deed.

2. The party holding a junior tax deed (not being in possession under it) is under no greater obligation to pay taxes thereafter assessed upon the land than one holding an earlier deed.

8. One who holds a tax deed, whether valid or void, under which he has not gone into possession, may abandon all claim of title under it, and acquire title under a deed for taxes assessed upon the land *after*he took such earlier deed.

ERROR to tlie Circuit Court'for *Calumet*County.

Action to recover possession of land, tried by the court without a jury, June 23, 1870. The evidence consisted principally of the deeds under which the parties claimed, the dates and character of which sufficiently appear in the findings of the circuit judge, and in the opinion of Judge Cole.

The findings of the court are as follows :

1. That the land described in the complaint was sold for the non payment of taxes, by the county of Brown, in the year 1840. 2. That said land was deeded by said county of Brown to H. Eugene Eastman on the 20th day of May, 1852, but said deed did not contain the name of the purchaser at the sale. 3; That on the 31st day of December, 1867, a tax deed for said land was issued to H. Eugene Eastman, founded on said sale, which was recorded in Calumet county On the 6th day of February, 1868; and that on the 18th day of October, 1868, the said Eastman did execute and deliver to said plaintiff a quitclaim deed of said land. 4. That on the 23d day of May, 1849, a tax deed of said land, founded on a sale made in 1846, was issued by the clerk of the board of supervisors of said county in his official capacity, sealed with the seal of said board, but not with his private seal, in which he granted said, land in the *76name of tbe state of Wisconsin, but neither tbe state nor tbe county is named as a grantor, and wbicb deed was delivered to .one Lutber Haggedon on said day; and that on tbe 15tb day of March, 1850, said Haggedon executed and delivered to Albert D. Cotterel bis quit-claim deed of tbe same; and on tbe second day of April, 1853, said Cotterel conveyed tbe same by warranty deed to said defendant. '6. That on the 18th day of May, 1868, tbe clerk of tbe board of supervisors of Calumet county did make and deliver to said defendant a tax deed of said land, founded on tbe sale of April 11, 1854, for tax of 1853. 7. That on tbe 12th day of January, 1869, said clerk did execute and deliver to said defendant a tax deed of said land, founded on tbe sale of 1865, for taxes of 1864. 8. That in 1864, said land was assessed to said defendant.

' As a conclusion of law, tbe court held that tbe plaintiff was not entitled to recover.

Judgment accordingly; wbicb tbe plaintiff seeks here to reverse.

*B. P. Eaton,*plaintiff in error,

in person, argued that tbe tax-deed under wbicb be claimed was valid, because tbe law in force in 1840 was repealed by tbe statutes of 1849 and 1858, and Ch. 22, laws of 1859, making all taxes and charges a lien upon tbe land until paid, entered into tbe contract of sale, and tbe right of tbe bolder to a deed on demand after three years could not be cut off by subsequent legislation, citing *Robinson v. Howe,*13 Wis., 341; Blackwell on Tax Titles, 350-1; that tbe lien continued a charge on tbe land, citing Angel on Limitations, §§ 73, 92 and 173; Story’s Equity Ju., § 516; Story on Contracts, 179; Wharton’s Law Die., 577-579; 1 Hilliard on Mortgages, 467-475 and n., 617; 1 Hilliard on Real Property, 475: that tbe statute of limitations does not run against a lien, citing 2 Barr (Penn.) R. 224; 2 Parsons on Contracts, 370 and cases cited; *State ex rel. White v. Winn,*19 Wis., 304. He also argued that tbe tax deed to Haggedon was insufficient as evidence of title, and invalid, citing *Bridge v. Brochen,*3 Chand., 75; Edgar.*77
      *ton v.*Bird, 6 Wis., 527; *Baton v. North,*20 Wis., 449; *Starts-, vant v.*Mather, id., 576; and that tbe defendant, being tbe owner of tbe land in 1858 and in 1864, tbe purchase of tbe certificate of sale for tbe taxes of those years operated merely as a payment of tbe taxes, and bis tax deeds were therefore void, citing *Smith v.*Lewis, 20 Wis., 850; *Bassett and wife v. Welch,*22 Wis., 175.

Cole, J.

Tbe plaintiff claimed tbe right to tbe property upon tbe strength of bis title, derived through tbe tax deed to Eastman. Tbe case shows that this deed was given upon a tax sale made in 1840. The defendant, to defeat a recovery, relied, among other things, upon tbe tax deed executed to him May 18th, 1863, and founded on a tax sale made in 1854. Now, tbe doctrine is well settled that a junior levy and assessment of taxes, and a sale upon such assessment, effectually cuts off and destroys any earlier tax deed. It is evident then that tbe tax sale of 1854 destroyed tbe title derived through tbe earlier sale of 1840. But it is insisted that tbe tax deed given tbe defendant on tbe sale of 1854 is void, because tbe defendant was then tbe owner of tbe land, and bound to pay tbe taxes assessed upon it. But tbe evidence contained in the bill of exceptions utterly fails to show that tbe defendant owned tbe land in 1853 or 1854, and was under obligation to pay tbe taxes. Tbe evidence shows this state of facts: A tax deed of tbe lands to one Luther Haggedon, dated tbe 23d of May, 1849, founded upon tbe tax sale of 1846 ; a deed fromHaggerdonto Albert Cotterel dated March 15, 18'50; and a warrantee deed from Cotterel to tbe defendant, dated April 2d, 1853, and recorded May, 1853. It therefore appears that all tbe interest which tbe defendant bad in tbe land in 1853, was derived through tbe tax deed given to Luther Haggedon. Now tbe defendant, claiming through a tax deed granted on a subsequent tax sale, was under no higher duty to pay tbe taxes than tbe party claiming under tbe tax sale of 1840. Tbe defendant might abandon all right under tbe Haggedon tax deed, and acquire a new tax *78deed. At least we know of no principle of law wbicb wonld prohibit Mm from doing tMs. And it seems be did take a tax deed on tbe sale of 1854.

Furthermore, it is insisted by the plaintiff that the tax deed executed to Haggedon was absolutely void because neither the state nor the county were named as grantors therein. If tMs position is sound, and we do not deem it very material to determine whether it is or not, then it is very evident that the defendant acquired no title whatever under that deed. In this view there is no possible reason for saying that he was the owner of the property when the tax for 1853 was assessed, and therefore bound to pay the taxes for that year. But, even if the tax deed to Haggedon was not void for the objections taken to it by the plaintiff, still the defendant might abandon all rights under that deed and acquire a new tax deed. And this it seems he did do when he took the tax deed founded upon the sale of 1854. We therefore see no valid reason for holding that the defendant cannot hold the land under the tax deed issued on the junior sale. For there is no evidence in the case to show that he had any other interest in the land when the tax for 1853 was assessed, than what he acquired through the tax deed executed to Haggedon, and this interest he might abandon. If it appeared that he was in possession in 1853, it might with some reason be claimed that he went into possession under the Hag-gedon deed, and was bound to pay the taxes assessed for 1853 against the property. But this fact is not established by the evidence. Indeed it does not appear when the defendant took possession, though we may assume that he was in possession in 1864, since the lands were assessed to Mm that year. On this record we see no reason for disturbing the judgment.

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