1. The courts of the United States, in absence of legislation
upon the subject by Congress, recognize the statutes of limitation
of the several states, and give them the same construction and
effect as that are given by the local tribunals. They are a rule of
decision under the 34th section of the Judiciary Act of 1798.
2. The construction given to a state statute by the highest
judicial tribunal of such state, is regarded as a part of the
statute, and is as binding on the courts of the United States as
the text.
3. If the highest judicial tribunal of a state adopt new views
as to the proper construction of such a statute and reverse its
former decisions, this Court will follow the latest settled
adjudications.
4. The lapse of the time given by statute for bringing an
ejectment not only bars the remedy, but extinguishes the right and
vests a perfect title in the adverse holder.
5. The statute of Wisconsin limiting the time within which suit
for the recovery of lands sold for taxes must be brought begins to
run from the time of the recording of the tax deed, whether
possession has or has not been taken by the purchaser.
6. It is immaterial whether the sale and the deed be void or
valid; it is sufficient that a sale has been made and the deed
recorded, to bring the statute into activity, and after the lapse
of the period limited, to entitle the purchaser, and those claiming
under him, to its protection.
MR. JUSTICE SWAYNE.
This cause is brought here by a writ of error to the District
Court of the United States for the District of Wisconsin.
Page 67 U. S. 600
In the court below, Warren, the defendant in error, instituted
an action of ejectment to recover the premises in controversy.
Judgment was rendered in his favor. The defendant there is the
plaintiff in error here.
The parties made an agreement as to the facts which is set forth
in the bill of exceptions. It was thereby admitted upon the
trial:
"That the plaintiff has a perfect chain of title to the land in
question from the United States to himself, and that the defendant
was in possession thereof at the time of the commencement of this
suit, and that the land in suit is of the value of more than
$2,000."
"That the County of Rock, on the 6th day of February, A.D. 1852,
made and delivered to John M. Keep a paper purporting to be a tax
deed of said premises, of which, and the certificate of
acknowledgment, the following is a copy."
"[Here follow the copies mentioned, which it is unnecessary to
insert.]"
"[The plaintiff, however, not waiving any objection to said tax
deed, which may appear on its face, or which may be made to appear
by any other facts or evidence in the case.]"
"That said deed was recorded in the office of the Register of
Deeds for Rock County, where said land is situated, on February 6,
1852 subject to the objection, however, which is reserved by the
plaintiff on the ground that said deed is not so executed and
acknowledged as to be entitled to be recorded; that immediately
thereafter said Keep sold said premises to said defendant, and that
said defendant immediately thereafter entered into possession of
said premises, and has been in possession ever since."
"That the plaintiff, on the 29th day of February, 1848, that
being the proper time to pay the taxes on said land, including the
tax for the nonpayment of which said tax deed purports to be given,
wrote a letter and sent it by mail to the County Treasurer of said
Rock County, who was the officer authorized by law to demand and
received all the taxes on said land, including the delinquent tax
in question, stating that he wished to pay
Page 67 U. S. 601
the taxes on a list of lands mentioned, including the land in
suit, asking for a bill of the same, showing the amount that he
might remit; that said treasurer on the same day received said
letter at his office and answered it, enclosing a bill
corresponding with the receipt hereinafter given, stating that the
enclosed was the bill called for by plaintiff's letter; that
thereupon the said plaintiff remitted said amount to said
treasurer, who received the same and returned to said plaintiff the
said receipt herein after set forth the same day; and that at the
date of the receipt, the treasurer and the plaintiff supposed that
all the taxes on said lands were included in said receipt; but the
parties agree that the particular tax for which the land was sold
and deed given was not found by said treasurer, and not included in
said receipt."
"That after the date of said payment and receipt, no demand was
made of said plaintiff for payment of said delinquent tax, nor had
plaintiff actual notice that said tax remained unpaid until more
than three years after the recording of the tax deed, but that the
premises were duly advertised for sale as by law required, and that
said deed was recorded as hereinbefore set forth. That the said
delinquent tax and costs amounted at the date of the sale to $19
81/100. That on the 11th day of April, 1857, said plaintiff
deposited with the clerk of the Supervisors of Rock County the sum
of $70 50/100, being the full amount of sale, interest, and costs,
to redeem said land mentioned in the said tax deed, and that the
deposit still remains there, there being no other unpaid tax on
said land at that time."
"The following is a copy of the receipt given by said treasurer,
mentioned above,
viz.:"
"TERRITORY OF WISCONSIN, ROCK COUNTY"
"TREASURER'S OFFICE"
"February 29th, 1848"
"Received of the different owners, per Catlin & Williamson,
agents, $25 60/100, in full of the taxes charged for the year 1847,
on the following tracts of land in the County of Rock, W.T.,
consisting of the following items of tax, to-wit: county, town,
common school, territorial revenue, and "
Page 67 U. S. 602
image:a
"WM. A. LAWRENCE,
Treasurer"
"The first two tracts being the land in question."
It appears further by the bill of exceptions that instructions
to the jury were asked by the plaintiff in error, which were
refused by the court, to which refusal he excepted, and that
instructions were given to which he also excepted.
In the view which we have taken of the case, it is necessary to
advert to those instructions only which relate to the statute of
limitations.
They are as follows:
"The counsel for the said defendant did request the said judge
to charge the jury as follows:"
"1. That it being admitted by the parties that the defendant
entered into possession of the land in question under a tax deed,
and has held said possession under said deed more than three years
before the commencement of this action, and it being also admitted
that said tax for which said land was sold was never paid, they
will find for the defendant."
"And the said judge refused to give said instruction, and to
which refusal the said defendant, by his said counsel, did then and
there, and in the presence of the said jury, duly except."
"And the said judge did also then and there further declare and
deliver his opinion to the said jury, that the deed is void on its
face, as it recites that the several tracts therein described were
sold collectively for a gross sum; and the deed being void,
Page 67 U. S. 603
neither it nor the subsequent possession by the defendant under
it for three years after the recording thereof is a bar to the
plaintiff's recovery."
"To which said last-mentioned opinion and charge of the said
judge the said counsel for the said defendant did then and there,
and in the presence of the said jury, on behalf of the said
defendant, duly except."
The statute of limitations relied upon by the plaintiff in error
provides that:
"Any suit or proceedings for the recovery of lands sold for
taxes,
except in cases where the taxes have been paid or the
lands redeemed as provided by law, shall be commenced within
three years from the time of recording the tax deed of sale, and
not thereafter."
Revised Statutes of Wisconsin of 1849, chap. 15, sec. 123,
164.
The courts of the United States, in the absence of legislation
upon the subject by Congress, recognize the statutes of limitations
of the several states and give them the same construction and
effect which are given by the local tribunals. They are a rule of
decision under the 34th section of the Judicial Act of 1789.
The construction given to a statute of a state by the highest
judicial tribunal of such state is regarded as a part of the
statute and is as binding upon the courts of the United States as
the text.
Shelby v.
Guy, 11 Wheat. 351;
McCluny v.
Silliman, 3 Pet. 270;
Greene v.
Neil's Lessee, 6 Pet. 291;
Ross v.
Duval, 13 Pet. 45;
Massingall v. Downs, 1
How. 767;
Nesmith v.
Sheldon, 7 How. 812;
Van
Rensselaer v. Kearney, 11 How. 297;
Webster v.
Cooper, 14 How. 54.
If the highest judicial tribunal of a state adopt new views as
to the proper construction of such a statute and reverse its former
decisions, this Court will follow the latest settled adjudications.
United States v.
Morrison, 4 Pet. 124;
Green v.
McNeil's Lessee, 6 Pet. 291.
This statute of limitations came under the consideration of the
Supreme Court of Wisconsin in
Edgerton v. Byrd, 6 Wis.
597. The court held:
"A tax deed informal and defective
Page 67 U. S. 604
in substance is admissible to show color of title in the
defendant to bring him within the statutes of limitation. . . .
Suits for the recovery of lands sold for taxes, except in cases
where the taxes have been paid, or the lands redeemed according to
law, must be commenced within three years from the time of
recording the tax deed of sale, or no recovery can be had."
"Possession accompanied with a claim of title under a tax deed
void for informality is adverse possession."
In
Sprecker v. Wakeley, 11 Wis. 432, the subject came
again under consideration. The court reaffirmed the principles of
the former decision.
In answer to the objection that it should be shown the land had
been regularly sold and that the officer who executed the deed had
authority to give it, they said:
"But if this is a correct view of the statute we fail to
perceive any object in passing it. For when the public authorities
have proceeded strictly according to law in listing the lands,
assessing the tax, making demand for the same at the proper time
and place, advertising for nonpayment of tax &c., and have
observed all the requirements of the statutes up to the execution
of the deed, surely the tax deed in that case must convey a good
title, or our revenue laws are illusory, and the power of the
government to raise means by taxation upon the property of its
citizens necessary for its own support and action is entirely
impotent and vain. But we think a party cannot be required to show
that his tax deed has been regularly obtained before he can claim
the protection of this statute, since such a construction renders
the law unnecessary and useless."
In
Hill v. Kricke, 6 Wis. 442, the same court held
further that possession by the party claiming under the tax deed
was not necessary to the running of the statute; that under the
laws of Wisconsin, ejectment would lie against him without actual
possession; and that the repeal of the statute after the bar became
complete could not affect a title under it thus acquired.
It is not claimed that fraud is an element in the case. The
facts show there was none. The only exceptions made in the
Page 67 U. S. 605
statute which prevent its application are where the taxes are
paid before the sale, and where the land is redeemed within the
time prescribed by law after the sale.
This case does not fall within either of these exceptions. We
have no power to add to them. To do so would be to usurp the
function of another and a distinct governmental department. It
would be legislation, and not adjudication.
Cocke & Jack v.
McGinnis, 1 Martin & Yerger 264 (MR. JUSTICE CATRON's
opinion);
Troup v. Smith, 20 J.R. 33;
Leonard v.
Pitney, 5 Wend. 30;
Howell v. Hair, 15 Ala. 194;
Beckford v. Wade, 17 Ves.Jr. 87.
The lapse of the time limited by such statutes not only bars the
remedy, but it extinguishes the right, and vests a perfect title in
the adverse holder.
"It tolls the entry of the person having the right, and
consequently, though the very right be in the defendant, yet he
cannot justify his ejecting the plaintiff."
Buller's N.P. 103;
Stocker v. Berney, 1 Ld.Raymond 741;
Taylor v. Hord, 1 Burr. 60;
Barwick v. Thompson,
7 Term. 492;
Beckford v. Wade, Ves.Jr. 87;
Moore v.
Luce, 29 Penn. 260;
Thompson v. Greene, 4 Ohio St.
223;
Newcombe v. Leavitt, 22 Ala. 631;
Wenn v.
Lee, 5 Ga. 217;
Chiles v. Jones, 4 Dana 483.
The instruction refused and that given refer to the fact of
possession by the defendant below. The statute is silent upon that
subject. It begins to run from the time of the recording of the
deed, whether possession has or has not been taken.
Hill v.
Kricke, 6 Wis. 447.
It was admitted by the stipulation of the parties that the deed
in this case was recorded on the 6th of February, 1845. This suit
was commenced on the 2d day of October, 1857.
Upon this state of facts, the court below instructed the
jury:
"That the deed being void, neither it nor the subsequent
possession under it for three years after the recording thereof is
a bar to the plaintiff's recovery."
This was clearly an error.
According to the rulings referred to, of the supreme court of
the state, it is immaterial whether the sale and the deed be
void
Page 67 U. S. 606
or valid. It is sufficient that a sale has been made and the
deed recorded to bring the statute into activity and, after the
lapse of the period limited, to entitle the purchaser and those
claiming under him to its protection.
Statutes of limitation are now regarded favorably in all courts
of justice. They are "statutes of repose." Usually they are founded
in a wise and salutary policy and promote the ends of justice.
Tolson v. Kage, 3 Brod. & Bing. 217;
Lewis v.
Marshall, 5 Pet. 470.
The equities in behalf of the plaintiff below are strong. We
have all felt their force. Without any fault on his part, he has
been divested of the title to his land. But our duty is to apply
the law, not to make it. If this statute be unwise or unjust, the
remedial power lies with the legislature of the state, and not with
this Court.
The judgment of the court below must be reversed and the
cause remanded for further proceedings in conformity with this
opinion.