The following opinion was filed September 29, 1891:
Oassoday, J.The tax deed under which the defendant claims title was recorded May 31,1882. It is, in effect, conceded that copies of the statement of delinquent taxes and the notice of the tax sale upon which the deed was issued were not posted up as required by secs. 1130-1132, R. S. This being so, the sale was a nullity, and the deed issued thereon was void. It necessarily follows that the plaintiff is entitled to recover unless its right of -action is barred by the three-years statute of limitation pleaded. Sec. 1188, S. & B. Ann. Stats.
The lands were wild and unoccupied during the times in question. The mere execution and delivery of the tax deed did not vest in the defendant the title or possession of the lands, nor give him the right to maintain ejectment therefor. Hewitt v. Week, 59 Wis. 444. But the tax deed, being valid upon its face and duly recorded, did carry to the defendant the constructive possession of the lands. This would have been otherwise had the irregularities in the tax sale appeared in the tax deed, for it is well settled that -a tax deed void upon its face does not carry the constructive possession. Lander v. Bromley, 79 Wis. 372. Although the land was wild and unoccupied, yet the recording of the tax deed, as has been frequently held by this court, was such an assertion of title by the grantee therein named as authorized ejectment by the original owner.
The question presented, therefore, is not the one so elaborately discussed by the learned counsel for the defendant,— as to whether the defendant could surrender an interest in- the lands by the parol agreement found by the court,— nor even a question as to the surrender of actual possession by parol, but whether such agreement operated *391to destroy or interrupt the defendant’s constructive possession of the lands, which he acquired by virtue of the tax deed. In other words, Did it operate to stop the further running of the statute of limitation in his favor? That statute is not so much a muniment of title as a privilege which may he waived or forever lost by a simple failure to plead it. So it may be lost by estoppel in pais. Again, such constructive possession only continues while the lands described in the tax deed remain vacant and unoccupied. Sec. 1187, S. & B. Ann. Stats. In other words, such constructive possession only ripens into an absolute title when such lands remain vacant and unoccupied continuously during the whole period named in the statute.- Accordingly it has been frequently held that an occupation of such land by the former owner for any portion of such period breaks the continuity and destroys such constructive possession. Lewis v. Disher, 32 Wis. 501; Haseltime v. Mosher, 51 Wis. 413; Smith v. Sherry, 54 Wis. 130; Warren v. Putnam, 63 Wis. 414; Finn v. Wis. R. Land Co. 72 Wis. 516.
- Such being the nature of mere constructive possession under a tax deed valid upon its face, but otherwise void, was it not competent for the defendant, before the running of the statute in his favor, to surrender such constructive possession by the parol agreement found by the court?
The agreement found to have been made about July 1, 1884, between the plaintiff and the defendant,' presupposes a claim on the part of the plaintiff that the tax deed was void, and that the plaintiff then threatened to bring suit to invalidate the same, and that to avoid.such suit the defendant agreed to execute a deed to the plaintiff for the amount of taxes he had paid and interest. Such, in effect, is the testimony of Mr. Bailey, who acted for the plaintiff in making the agreement.- Mr. Bailey also testified that he offered to pay the amount to the defendant then, but that the latter said' he did not know the amount; that when he got *392home he would figure it up, and let him know the amount; and that Mr. Bailey could then send him a check or draft ■for the amount. It is true, the defendant denies much of Mr. Bailey’s testimony, but it is evident that the trial court was convinced of its truthfulness, and therefore found accordingly. To allow the defendant to back out of his agreement thus made, after the plaintiff had relied upon it until the statute of limitation would otherwise have run, would operate as a great injustice to the plaintiff.
We are constrained to hold that by the making of such agreement the defendant waived and extinguished his constructive possession, and surrendered and abandoned the claim of title which he had inferentially asserted by the recording of his tax deed. This necessarily results from the logic of the opinion of our late Brother Taylor in Warren v. Putnam, 63 Wis. 413-418.
By the Court.— The judgment of the circuit court is affirmed.
ORtow, J., took no part.Upon a motion for a rehearing there was a. brief for the appellant by James O’Neill, attorney, and Morris & Morris, of counsel; and a brief for the respondent by W. F. Bailey.
The motion was denied November 17,1891.