Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1876-05-11
IMPORTANT DECISION.
Illegal Tax Certificates are With
in the Statute Of Limitations.
Claims against County
Barred in Six
Years.

SUPREME COCRT.-cnAs. BAKER, Responder
VS.. THE BOARD OF SUPERVISORS OF THE COUS
TRY OF COLUMBIA, Appellant.
The circuit court permitted the
county to file an answer setting "
the defense Of the statute Of limita
tions, but under the circ umstances VIC
do not think there was any abuse Of
discretion in allowing this to be done,
The appeal was from the action Of the
board disallowing the plaintiffs S claims
and it did not appear upon what ground
the claims was rejected. 1t is stated
in the affidavit OF the attorney for the
plaintiff that the claim was not dis
allowed by the board because the stat
tute Of limitations had run upon it.
But still when the cause was appealed
to the circuit it was proper that the
grounds Of defense should appear in
formal pleadings. Tarboc as. Super
uisors Of adams County, "a WIS, 558
Under the decision III Bordea as.
Supervisors Of Columbia County, 39
Vas, AS, the tax certificates were
void for the reason that the cost of the
revenue stamps was included In the
amount for which the land was sold.
Aud this action, like that, is brought
under the provisions of chapter %
laws of 1859, to recover back the
money paid on these void certificates.
The counsel for the county insists that
the action is barred BY chapter 112,
laws Of 1867, and that none Of the
certificates come within the expections
contained in this and the amendatory
act of 1868 (Chapter 56). In the
law of 1867 it is in substance enacted
that no tax deed shall be issued on
any tax certificate after six years from
the day of sale of the lauds for the
delinquent tax and the act further
provides that "no action, either in law
or in equity, shall be commenced on
such certificate after the expiration of
six years from the said day of sale. ,
There is proviso that the act shall
not apply to certificate owned by any
county or municipal corporation, or by
their assignee, until the expiration of
six years from the date of the assign
ment of the certificates Nos. 1144,
743. 75S, 615 and sos are concerned
we cannot see why this act does not
bar recovery upon them. This action
is one at law brought directly upon the
certificates and comes within the very
terms of the act. The oldest certif-
cate is dated May 10, 1864, and, there
was therefore more than two years for
the party to bring his action after the
law took effect This was certainly a
reasonable time for enforcing the right
before the bar of the statute word run.
The law is well settled that right Of
action already accrued may be barred,
providing a reasonable time be given,
after the passage Of the act, for par
ty to prosecute. Parker as. KOne, 4
Vas Il; Von Baunabach Us, Bade, 9
do $50: Smith Us Packard. y do 81;
HoceU Us. HoweH, Is io So; Mcch-
lene u.s. Blake, % do 495. In opinion
in the case of Wolff Us The Board Of
Supervisors Of Sheyeboygan County,
20 Wis., 79, the remark is made that
the acts of 1867 and 1868 do not pro
fess or attempt to limit the liability of
the county to refund moneys due upon
defective tax certificates to six years
This was not the real question upon
which the case was decided, and in
drawing up the opinion [ overlooked
the second clause of the section, as
suming that the only object of the act
was to limit the time for issuing tax
deeds upon tax certificates. But fur
ther examin alton satisfies me that this
is not the only object and intent Of the
act, but that it extends to an action
against the county to recover money
on invalid tax certificates, unless the
case falls within one of the provisos
[ therefore fully agree with my breth-
rem that the remark made in the Wolff
case above referred to, is misleading,
incorrect and should be overruled. 1t
appears that the land embraced in tax
certificate No. 1915 was bid In by the
county. but whether the certificate was
assigned six years before the COM
mencement of the action, the evidence
does not disclose. We cannot there
fore determine whether that certificate
comes within the saving clause Of the
act.
In attempting TO sustain the plain
tiF's right to recover under sec. 26
and 81, chap. %, supra, it was insisted
that the statute of limitations did not
begin to run until the error in the tax
proceedings or the invalidity in the
certificate or tax deed was 'discoU-
rred.' But the language in both the
law of 1867 and 1868 is clear and
positive that the action shall be bar
red "after the expiration Of sac years