Chicago & Northwestern Railway Co. v. Arnold

This is an action to set aside certain tax ■sales of real estate, and to bar the holder of the tax-sale cer-tificates from any right or interest in said real estate. The •complaint was demurred to on the ground that the cause of .action was barred by the provisions of see. 12107&, Stats. 1898, because the complaint showed that the action was not •commenced within one year from the date of the tax sale. The complaint did show this fact, but it also showed that ■•the lands in question were at the time of the levy of the tax, *436and ever since have been, used by the plaintiff for railroad purposes, and bence were exempt from general taxation. Whether this allegation that the lands were exempt from taxation when the supposed tax was levied removes the case from the one-year limitation prescribed by sec. 1210h aforesaid is the only question in the case. This question must be answered in the affirmative by virtue of the plain terms of sec. 1189, Stats. 1898, which is contained in the same chapter as sec. 12107k, and which provides, among other things, that, except in cases of actual possession founded on a tax deed, no limitation in favor of a tax deed or a tax certificate shall apply where the taxes were paid prior to the sale, or where the land was redeemed from the sale as provided by law, “or where the land was not liable to taxation.” In the absence of the statute, the result would be the same. The land being exempt from taxation, there was a want of authority ah initio to set the machinery of taxation in motion, or, in other words, there was no jurisdiction on the part of the taxing officers. Where such is the case, this court has held that there is nothing for a statute of limitation to act upon. Smith v. Sherry, 54 Wis. 114, 11 N. W. 465.

By the Court. — Order affirmed.