US SUPREME COURT DECISIONS

Although section 3186 of the Revised Statutes of Wisconsin may have enlarged the ordinary equitable action to quiet title and remove a cloud, the circuit court of the United States, sitting in that district, may take jurisdiction of a bill properly brought under its provisions.

A person in possession, claiming under a tax deed under which he had obtained title may institute such a suit.

The jurisdiction of a suit so instituted is not affected by the provision in section 1197 of the Revised Statutes of Wisconsin of 1878 conferring for three years a right of action by the grantee in a tax deed against the owner to bar him and his grantees from claiming the land, nor by the provisions of section 22, c. 138, of the Revised Statutes of 1858.

Questions affecting the validity of a tax deed of real estate in a state must be disposed of in accordance with the interpretation of the statutes of the state by its highest judicial tribunal.

In Wisconsin, when a tax deed is in due form and recorded in the proper office, and the lands described therein remain vacant and unoccupied for three years or more after the recording thereof, the tax title claimant is deemed to be in constructive possession, the statute of limitations runs in his favor, and the original owner is barred from attacking the validity of the tax deed.

The introduction of certain evidence by the appellee held not to be a waiver of its right to rely on the statute of limitations.

In considering the acts and proceedings of county boards acting under Rev.Stats.Wis. of 1858, c. 13, section 28, they must be liberally construed.

The Revised Statutes of Wisconsin of 1858 provided that the register of deeds should keep a general index, each page of which should be divided into eight columns, with heads to the respective columns, as follows:

"Time of reception. Name of grantor. Name of grantee. Description of land."

Name of instrument. Volume and page where recorded. To whom delivered. Fees received;

that such register should make correct entries in said index of every instrument or writing received by him for record, under the respective and appropriate heads, entering the names of the grantors in alphabetical order, and should immediately upon the receipt of any such instrument or writing for record enter in the appropriate column and in the order in which it was received the day, hour, and minute of its reception, and the same should be considered as recorded chanrobles.com-red

Page 157 U. S. 328

at the time so noted. By section 759 of the Revised Statutes of 1878, it is directed that the division shall be into nine columns, the first column being headed "Number of instrument," and the others as in the act of 1858. In this case, the tax deed was entered in the index under the name of Douglas County, by which it was issued, although running in the name of the state as well as of the county. The original index had the eight divisions required by the statute, but the fourth column, under the heading "Description" was subdivided as shown in the opinion. This index, becoming dilapidated was laid aside, and a new one was prepared under the provisions of the laws of 1860, c. 201, which complied with the provisions of the statute in that respect, and was substituted for the original.

Held:

(1) That it was not necessary to insert in the index the name of the state as a grantor.

(2) That, taking the page of the original index as a whole, no one could be misled by it who was not willfully misled, and it was sufficient to set the statute of limitations in operation.

(3) That the new and correct index, having been properly certified to according to law, was from that date as effective as the original.

(4) That the appellant could not question the complainant's title on the ground of informality in the original.

This was a bill in equity, filed, under section 3186 of the Revised Statutes of the State of Wisconsin, by the Land & River Improvement Company, a corporation of New Jersey, against Thomas Bardon, a citizen of the State of Wisconsin, in the Circuit Court of the United States for the Western District of Wisconsin, to have certain conveyances declared void, and to quiet the title to the southeast quarter of section 28, township 49 north, range 14 west, in Douglas County, Wisconsin.

The section in question is as follows:

"SEC. 3186. Any person having the possession and legal title to land may institute an action against any other person setting up a claim thereto, and if the plaintiff shall be able to substantiate his title to such land, the defendant shall be adjudged to release to the plaintiff all claim thereto, and to pay the costs of such action, unless the defendant shall, by answer, disclaim all title to such land, and give a release thereof to the plaintiff, in which case he shall recover costs unless the court shall otherwise order. It shall be sufficient to aver in the complaint in such action the nature and extent of the plaintiff's estate in such land, describing it as accurately

Page 157 U. S. 329

as may be, and that he is in possession thereof, and that the defendant makes some claim thereto, and to demand judgment that the plaintiff's claim be established against any claim of the defendant, and that he be forever barred against having or claiming any right or title to the land adverse to the plaintiff, and the defendant, if he do not so disclaim and release, may answer any matter in denial of the plaintiff's claim, title, or possession, or which, if proved, will establish his own, and judgment shall be rendered according to the rights of the parties. And any person not having such title or possession, but being the owner and holder of any lien or encumbrance on land, shall also have the same right of action as the owner in fee in possession to test the legality and validity of any other claim, lien, or encumbrance on such land or any part thereof."

Complainant purchased the land of one Hiram Hayes, and paid him therefor $6,400, June 2, 1883, and took a warranty deed of conveyance and had paid the taxes since that time, and expended on the land up to 1890, including the taxes of 1889, something over $12,500. Hayes derived title through two tax deeds issued to him, one dated September 5, 1870, for the taxes of 1866, recorded September 7, 1870, and the other issued January 1, 1882, for the taxes of 1877, and recorded January 3, 1882. The original owner of the land was one James D. Ray, who conveyed it to James Bardon by release or quitclaim on March 6, 1878, and James Bardon subsequently conveyed it to Thomas Bardon, the defendant, for a nominal consideration. James Bardon testifies that he paid Ray for his quitclaim deed $100 "and perhaps more," and conveyed his interest to Thomas without money consideration. The case turned upon the validity of these tax deeds or either of them, and the circuit court held that the deed dated September 5, 1870, was valid; that the statute of limitations had run upon it; that the original owner was barred, and that complainant's title was good. A decree was accordingly entered for complainant, to review which this appeal is prosecuted. The opinion of the circuit court will be found in 45 F.7d 6. chanrobles.com-red

Page 157 U. S. 330