
    Coe, Respondent, vs. Rockman, Appellant.
    
      December 12, 1905
    
    January 9, 1906.
    
    <1, 2, 4) Removing cloud on title: Tax deeds: Judgment: Immaterial errors: Who may maintain action: Pleading: Variance. (3) Foreign corporations: Disposing of property in this state. (5) Mortgages: Foreclosure by advertisement: Irregularities: Limitation of actions.
    
    1. In an action to cancel tax deeds as a cloud upon title, where the evidence was undisputed as to the nature and Quality of plaintiff’s interest in the land and such interest was fully set forth in the findings of fact, the failure of the judgment to determine expressly that plaintiff had such interest and that the tax deeds were a cloud was not an error prejudicial to defendant for which the judgment will he reversed.
    ■2. One to whom has "been conveyed the rights of a mortgagee who purchased at a foreclosure sale which was not confirmed is the owner and holder of such a lien as, under sec. 3186, Stats. 1898, gives him the right to maintain an action to test the validity of tax deeds of the land.
    '3. Where a foreign corporation acquired an interest in land in this state before the enactment of sec. 17706, Stats. 1898, that statute in no way divested or impaired such interest or prevented its conveyance, even though the corporation did not file a copy of its charter as provided in said statute.
    ■4. In an action to cancel tax deeds as a cloud upon title, evidence of irregularities in the tax proceedings other than those specifically alleged in the complaint, if received without objection, is properly before the court as a basis for its findings and judgment. The pleading will -he deemed to have been amended in accordance with the facts proved.
    .5. Under sec. 3543», Stats. 1898, where a mortgage has been foreclosed by advertisement, the sale cannot be held invalid for irregularities in the notice or its publication or in the proceedings of the officer conducting the sale, unless the action in which the validity is questioned was commenced within five years after the sale was made.
    Abbbal from a judgment of the circuit court for Barron -county: A. J. ViNJB, Circuit Judge.
    
      Affirmed.
    
    This is an action to remove a cloud from the title to certain lands claimed by tbe plaintiff. Tbe complaint alleges ownership in fee by .tbe plaintiff of all tbe lands involved in tbis controversy and states tbat tbe cloud upon tbe title consists of certain tax deeds — one issued on tbe 9th day of June, 1899, and recorded tbe same day in tbe office of tbe register of deeds of Barron county, tbe other issued on tbe 15th day of July of tbe same year and likewise recorded. Tbe tax deeds were issued on tax certificates of 1896 for unpaid taxes for 1895, and it is alleged tbat they are void for want of a statement of tbe lands upon wbicb taxes were returned as delinquent by tbe county treasurer, for want of a sufficient publication, for want of a sufficient posting of notices of sale, and because tbe taxes assessed upon tbe lands exceeded tbe amount authorized by law. Tbe complaint further states: “Tbat for said reasons and others said certificates were void, and tbe tax deeds issued to tbe defendant thereon were null, void, and irregular.” Plaintiff tendered defendant tbe amount for wbicb tbe lands were sold for taxes with interest, wbicb was rejected. Tbe complaint describes tbe lands and demands tbat tbe two tax deeds be “vacated, set aside, and declared null and void.” Tbe answer alleges tbe execution and recording of tbe tax deeds and admits the refusal of tbe defendant to execute a quitclaim deed as requested by plaintiff when tbe tender of tbe amount of tbe taxes and interest was made.
    From tbe proof tbe court found tbe following facts: On July 19, 1882, a mortgage due June 15, 1887, was executed by Andrew Hazelton to tbe Hekla Fire Insurance Company, a domestic corporation, on part of tbe lands in controversy. On December 27, 1883, a mortgage due December 15, 1886, was executed by Oscar B. Hoyt to tbe same company on certain other of tbe lands included in tbis controversy. On April 20, 1885, William Craddock executed a mortgage due June 15, 1890, on certain of these lands to tbe same company. Tbe Craddock mortgage was assigned February 20, 1890, to tbe American Mortgage Security Company, a Minnesota corporation. Upon default tbe Hazelton and Hoyt mortgages were foreclosed by action and tbe lands were sold to tbe plaintiff, tbe Hekla Company, but tbe sales were not confirmed by tbe court. On February 20, 1890, tbe Hekla Company conveyed tbe premises covered by tbe Hazelton and tbe Hoyt mortgages to tbe American Mortgage Security Company. Upon default in tbe payment of tbe Craddock mortgage tbe mortgage was foreclosed by advertisement and sold to E. A. Hendrickson, and a sheriffs deed was issued to bim. On April 19, 1892, Hendrickson conveyed to tbe American Mortgage Security Company. On October 1, 1896, tbe American Mortgage Security Company conveyed all of tbe lands to tbe Local Investment Company, a Minnesota corporation. Neither of tbe Minnesota companies bas filed its articles of association with tbe secretary of state of Wisconsin. On October 2, 1896, the Local Investment Company mortgaged these lands to secure tbe payment of a note for $1,500, due in five years with interest at sis per cent. In 1900 plaintiff became tbe owner of tbe note and mortgage, and on September 25th of that year tbe Local Investment Company executed to bim a quitclaim deed.
    Tbe court found tbe following facts pertaining to tbe sale of tbe lands for taxes and tbe issuance of tax deeds for delinquent taxes: On June 9, 1899, a tax deed to tbe lands covered by tbe Hazelton and Hoyt mortgages was issued to tbe defendant. This was recorded tbe same day. On July 15, 1899, a tax deed was issued and recorded by defendant to tbe lands covered by tbe Craddock mortgage. Tbe lands are all wild and unoccupied. Tbe treasurer’s tax sale notice was published by five insertions. Tbe county treasurer’s affidavit of tbe posting of notices specifies six places, but in bis testimony before tbe court be stated that be bad personally posted but three and that be bad no personal knowledge as to whether tbe other notices were posted as stated. Tbe sum of twenty-five cents as advertising fee and tbe sum of twenty-five cents as a certificate fee and five per cent, of tbe amount of tbe tax were included in tbe amount for which each forty-acre tract was sold. In tbe proofs of publication and posting tbe town and range numbers are so indistinct that they cannot be ascertained. Tbe court found tbe amounts for which the lands were sold and that plaintiff had tendered payment of the taxes and interest. The court held that the defendant’s tax deeds were void for irregularities not going to tbe groundwork of tbe tax, and that plaintiff should recover, and as a condition of judgment should, within ninety days'from August 25, 1903, pay the defendant $80 for taxes, interest, and fees, with interest thereon.
    The judgment recites that, on defendant’s refusal to accept the amount found by the court as due defendant, plaintiff had deposited it with the clerk of the court, and adjudges that tbe defendant release to the plaintiff all his right, title, or claim asserted at tbe commencement of the action by virtue of tbe tax deeds, and declares defendant’s deeds to be null, void, and of no effect. The judgment does not in express terms determine that plaintiff is the- owner of, or that he has an interest in or claim to, the lands in question. This is an appeal from such judgment.
    W. F. Bailey, for the appellant.
    For tbe respondent there was a brief by Arthur F. Coe, and oral argument by G. G. Goe.
    
   Siebecker, T.

This is an action to cancel certain tax deeds issued to defendant, alleged to be a cloud upon plaintiff’s title and claim to the lands covered by them. If, upon the facts found by the court, plaintiff is either the owner in fee of tbe premises or the owner and holder of any lien or in-cumbrance on tbe land, then, under sec. 3186, Stats. 1898, be is authorized to prosecute this action to test tbe legality and validity of any claim, lien, or incumbrance on such land or any part thereof.

One ground of error relied upon is tbat tbe. judgment is defective in that it fails to determine expressly that plaintiff bas a right, title, or interest in the lands, and that it fails to declare that defendant’s tax deeds constitute a cloud upon the right, claim, or title of the plaintiff to the premises. It is true that the judgment as entered omits to expressly adjudicate this point. In the case of Grindo v. McGee, 111 Wis. 531, 87 N. W. 468, an ejectment action wherein the judgment failed to determine the “quality or extent of plaintiff’s title,” as required by the law in such actions, it was held that if defendant’s title be shown to be of no validity he could not be prejudiced by the failure of the trial court to adjudicate the quality of the plaintiff’s estate in the lands, as prescribed by subd. 7, sec. 3084, Stats. 1898, and the error will be disregarded. The court observes:

“The statute (sec. 2829) commands the court to disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.”

The evidence in the instant case is undisputed as to the nature and the quality of plaintiff’s interest, and.this interest, though not expressly determined in the judgment, is fully set forth in the findings of fact by the court. It is not shown, nor can we conceive, how this error can in any way be prejudicial to defendant and call for a reversal of the judgment under the foregoing statute and decision.

It is contended that plaintiff has no interest in the premises because his predecessor in title had acquired no interest under the1 judgments of foreclosure hy the Hekla Company as mortgagee of the premises, since the sale was not confirmed. Under such circumstances the Hekla Company held the title and rights of a-mortgagee purchaser at the sale and could take any steps necessary to perfect its rights by confirmation. The subsequent conveyance of the lands by warranty deed to the American Mortgage Security Company vested this company with, all these rights, interests, and claims, and these were subsequently conveyed to the plaintiff. This made plaintiff the owner and holder of such a lien as gave him, under the provisions of sec. 3186, Stats. 1898, the right of action to test the legality of defendant’s tax deeds.

It is further urged that the security and investment companies are Minnesota corporations which have not filed copies of their charters in the office of the secretary of state as required by sec. 1770Z>, Stats. 1898. The record shows that these corporations acquired their interests in the lands before the enactment of this statute. Under the construction given this section in Chicago T. & T. Co. v. Bashford, 120 Wis. 281, 97 N. W. 940, their interests were in no way divested or impaired by this statute, and they could properly convey them.

It is claimed that the court could not hold the tax deeds void for any irregularities other than those alleged in the complaint. The court finds specifically wherein the proceedings for the sale were defective. Proof of these irregularities was received without objection under the complaint, which set forth a number of irregularities and then alleged “that for said reasons and others said certificates were void, and the tax deeds issued to defendant thereon were null, void, and irregular.” We see no valid reason why the evidence received without objection was not properly before the court to test the validity of the proceedings on which these tax deeds issued. Nor could the action of the court be held prejudicial for any variance between the pleadings and the proof, under the rule re-affirmed in the case of Packard v. Kinzie A. H. Co. 105 Wis. 323, 81 N. W. 488, that “on appeal, in support of the judgment appealed from, the findings and proceedings will be deemed amended in accordance with the facts proved when the evidence was not objected to below, or the proper amendment will be made on appeal.” The error complained of also falls within the scope of sec. 2829, Stats. 1898, as one not affecting the substantial rights of an adverse party, and should be disregarded on. appeal as not stating grounds for a reversal.

It is argued that the sheriff’s deed, purporting to convey the title to lands under the attempted foreclosure by advertisement, was absolutely void because it failed to comply with the requirements of the statutes providing for such proceedings. This exception goes to irregularities in the foreclosure proceeding. The premises were sold in this proceeding by the sheriff of the county wherein the property is situated on September 20, 1890, and a deed issued to the purchaser October 1,1891. The irregularities complained of are covered by sec. 8543a, Stats. 1898. Since the foreclosure and sale took place' more than five years before the commencement of this action, defendant is precluded from interposing them as a defense.

By the Court. — Judgment affirmed.  