By the Court,
Cole, J.This suit was brought under section 29, chap. 141, R S., 1858, which provides that any person having the possession of 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.
The first question which we have to consider is one of jurisdiction. The appellants here, who were the defendants below, contend that the action can be maintained under this statute, *601only where it is averred in tbe complaint and appears in tbe proof that the plaintiff has the legal title and actual possession of the premises to the exclusion of the defendant. They insist and claim that if either the title or possession of the plaintiff be controverted by the defendant setting up title or possession in himself, that then the cause must be dismissed, and the parties turned over to their remedies at common law, where there can be a full investigation of the facts by a jury.
It was undoubtedly not the intention of this statute to give a court of equity power to try actions of ejectment. A court of law is the proper tribunal to try and adjudicate legal titles, and therefore when the holder of a legal title is not in possession he is ordinarily turned over to his action at law to recover it. But we do not understand that this suit was intended to be a substitute for, and answer the purpose of an action of ejectment. The plaintiffs allege title and possession in themselves and the object of the suit manifestly, is to quiet their title and remove the cloud which the tax deeds held by the defendants cast upon it., And if they have the legal title to the real estate and are in possession of it, as we think the proof shows that they are, they can maintain their action under this statute for the purpose of removing all doubts in respect to that title arising from the' existence of the tax deeds, especially when the holders of those deeds refuse or neglect to take any proceedings to test their validity or obtain possession of the premises under them. Besides I think there is another conclusive answer to this objection at this stage of the case, which is that it comes too late. If the defendants had wished to insist upon the objection, they should have raised the point in their answer as a bar to the court taking cognizance of the action, and not have gone to trial upon the merits and now raise it for the first time. The following authorities are clear upon this question of practice and show that it is too late to raise the objection, in such a proceeding at the final hearing. Stockton vs. Wil*602liams, Walk. Ch., 120; same case, in 1 Douglas (Mich.) 546; Grandin vs. LeRoy, 2 Paige 509; The Bank of Utica vs. The City of Utica, 4 Paige 290; The Bank of Utica vs. Mersereau, 3 Barb. Ch., 533. It therefore seems to be proper for the court to entertain jurisdiction of the action under this statute, since the plaintiffs allege that they are seized in fee of the premises and hold, occupy, possess and enjoy them and each and every parcel thereof, and the defendants submitted themselves to this jurisdiction and went to trial on the merits.
And this brings us to an enquiry into the validity of the tax deeds set up and relied on in the answer as a defense to the relief demanded by the complaint. If for any reason these deeds are invalid or the defendants are unable to avail themselves of the title derived through them, then as a matter of course the judgment will have to be affirmed. The defendants rely entirely upon these deeds and the three years limitation, as the source of all their title or interest in the premises. One of these deeds was given by the clerk of the board of supervisors of Winnebago county to Charles Doty, on the 16th day of April, 1851, and recorded the same day; and the other was given by the treasurer of the village of Me-nasha to the defendant Pulling, the 20th day of August, 1857, and received for-record the 1st of September following. The lands embraced in these deeds were principally uncultivated, although the evidence shows that various persons actually occupied or resided upon some portions of them, sometimes entering into possession with the knowledge and consent of the administrators of the estate of Jones and sometimes with the knowledge and consent of the defendant Doty, the grantee of Charles, Indeed the whole evidence shows, that there was a constant squabble and contest in respect to the possession between those acting on behalf of the estate of Jones and those claiming under the tax deeds. We shall not enter upon any discussion of the testimony upon the question of possession and shall content ourselves with stating the conclusion we de*603duce from it. And to our minds it fails to show that those claiming title under the tax deeds, so dispossessed or disturbed the possession of the estate of Jones in the premises as to lay the foundation of the three years limitation under the statute. The law evidently contemplates a change of possession constructive or actual, otherwise the bar will not apply. It is true we have held in Hill vs. Kricke, 11 Wis. 442, and Knox vs. Cleveland, 13 id., 245, that when premises were unoccupied, the recording of the tax deed was such an assertion of title as to enable the original owner, if he wished to contest its validity, to bring his action for that purpose. The result of this doctrine undoubtedly is, that the recording of the tax deed draws after it the constructive possession, in a case where the premises are unoccupied or there is no actual possession by either party. But where the original owner remains in possession and continues to exercise acts of ownership over the premises, the recording of the tax deed can have no such effect. In that case the holder of the tax deed should institute his proceedings to dispossess the original owner within three years from the recording of the deed. We have already remarked that the testimony clearly showed that there was a constant conflict and contest in respect to the possession of the premises. It is impossible to say that the estate of Jones was ever dispossessed. Those acting on behalf of that estate, exercised quite as numerous and constant acts of ownership and possession over the premises as the parties claiming under the tax deed, if not more so. Now in such a case to give to the act of recording the tax deed the effect claimed, would be manifestly unjust and contrary to the intention of the legislature. It 'cannot be said there has been any adverse possession under the tax deeds to the exclusion of the true owner. And to entitle a party to the protection of the statute when he claims to have been in the actual possession under a tax deed, he ought to show that his possession is open and exclusive. Otherwise we think no foundation is laid for the adverse possession contemplated by *604the statute. The limitation is very short and exceedingly favorable to the party holding under the tax deed, and therefore it does not seem unreasonable, that he should bring himself fully within the spirit and intent of the law. And when the original owner is not dispossessed of the estate, the purchaser at the tax sale should be required to make his own possession open and exclusive as a condition to barring his rights. There is certainly no hardship in this rule and it is consistent with the most obvious principles of equity and justice. So in view of the circumstances of this case, we are clearly of the opinion that the defendants did not show such a possession under their tax deeds as would entitle them to claim the three years limitation even if no other objection existed to the validity of she instruments. But we are further of the opinion that the evidence showed a proper redemption from the tax sales by the heirs of Harvey Jones. Both the statutes of the territory and state provide, that whenever the lands of minors may have been sold for taxes, that they might be redeemed at any time before such minors became of age and during one year thereafter, laws 1841, § 28 chap. 10 of “an act to provide for the government of several towns in this territory,’’ &c. Sec. 104 chap. 15 R. S., 1849. Nor we are unable to perceive any valid objection to the redemption from the deed executed to Pulling by the treasurer of the village in 1857. Loyal H. Jones testifies that he, acting as guardian of the minor heirs, and as agent of Gilbert C. Jones, tendered in gold to Mr. Pulling, the redemption money ip December 1858. Gilbert had but a few days before arrived at the age of twenty-one and had an undoubted right to redeem. And of course the same privilege was clearly granted to the minor heirs. No objection has been raised to the time or manner of this redemption, and therefore we see no reason why it must not have full effect. It is however insisted, that the heirs had no right to redeem from the deed given to Doty in 1851 because they did not own the lands when they were sold for taxes. The *605lands were sold in April 1848 for taxes assessed the previous year. At this time they belonged to Whitney, who on the following July sold them by the usual contract of sale to the ancestor Harvey Jones. In the fall of 1849 Harvey Jones died and bis estate descended to bis three minor children. In August 1853, the guardian of the heirs deposited with the clerk of the board of supervisors, of Winnebago county, the amount of money necessary to redeem the lands from the tax deed issued to Charles Doty. It is claimed that although the minor heirs owned the lands at this time and even before the tax deed was issued, yet inasmuch as they were not the owners when the lands were sold they have no right to redeem. Stress is laid upon the language of the statute which is “whenever the lands of minors shall be sold for taxes, the same shall be redeemed,” &c. It must be admitted if this statute is to receive a strict construction, it would cut off the right of the heirs to redeem. But we think it should not receive such a construction. This case comes fully within the spirit of the law, which was evidently passed for the benefit of those laboring under some legal disability and who were incapable of protecting their own rights. So although the minors did notown the lands when they were sold for taxes, yet inasmuch as they became vested with the title before the tax deed was issued, the case would seem to come fully within the reason and principles of the law which gives them the right of redemption. The rule in regard to the construction of statutes of this character is thus laid down in Dubois vs. Hepburn, 10 Peters 1. The court say “ a law authorizing the redemption of lands so sold, ought to receive a liberal and benign construction in favor of those whose estates will be otherwise divested, especially when the time allowed is short, and ample indemnity given; the purchaser suffers no loss; he buys with full knowledge that his title cannot be absolute for two years; if it is defeated by redemption it reverts to the lawful proprietors.” It would therefore, seem not to be necessary for the purposes of justice *606or to effectuate the objects of the law, that the right to redeem should, be narrowed down by a strict construction.” Tbhe same rule is laid down in numerous cases, and it seems to be well settled, that provisions of this character are to be liberally construed and are not to be narrowed down by a strict construction. Masterson vs. Beasly, 3 Ohio 31; Patterson vs. Rindle, 8 Watts 98; Chapin vs. Curtenius, 15 Ill., 427. Within the doctrine of these decisions we think the heirs had the right to redeem from the deed of 1851, although they did not own the lands when sold. That everything was done to make the redemption valid and operative, is not we believe questioned.
It follows from these views that the defendants had no rights in the premises, derived through the two tax deeds mentioned in the answer and proofs which could be enforced, and that the judgment must be affirmed.
Judgment affirmed.