brought for the recovery of the land. 258; Pugh v. Youngblood, 69 Ala. 296.

Jones v. Randle, 68 Ala.

A statute of Wisconsin provides, that "any suit or proceeding for the recovery of land sold for taxes, except in cases where the taxes have been paid, or the land redeemed as provided by law, shall be commenced within three years from the time of recording the tax deed of sale, and not thereafter. This statute was held to commence running from the date of the record of the deed, and to apply to the original owner and tax purchaser, and to cut off either the original owner or tax purchaser, if the adverse claimant has been in the occupation of the land for the three years from the date of the record. Knox v. Cleveland, 13 Wis. 245; Jones v. Collins, 16 Wis. 621; Parish v. Eager, 15 Wis. 527; Whitney v. Marshall, 17 Wis. 180; Edgerton v. Bird, 6 Wis. 538 (70 Am. Dec. 473); Sprecker v. Wakeley, 11 Wis. 432. It was also held that, "when the land is unoccupied, the holder of the tax title has constructive possession, and if the owner of the original title does not bring ejectment (which the statute permits in such case) within the three years, he is barred, but that if the tax deed is void on its face, the grantee in it has no constructive possession, and in such case the statute does not run in his favor, though it would do so, even under a void deed, if his possession was actual, open and notorious." Knox v. Cleveland, 13 Wis. 245; Parish v. Eager, 15 Wis. 527; Jones v. Collins, 16 Wis. 631; Lawrence v. Kenney, 32 Wis. 296; Hill v. Krieke, 11 Wis. 446; Dean v. Earley, 15 Wis. 100; Lain v. Shepardson, 18 Wis. 64; Cutler v. Hurlbut, 29 Wis. 152; Lindsay v. Fay, 25 Wis. 460; Edgerton v. Bird, 6 Wis. 527 (70 Am. Dec. 473); Sprecker v. Wakeley, 11 Wis. 432; Oconto Co. v. Jerrard, 46 Wis. 326; McMillan v. Wehle, 55 Wis. 685 (13 N. W. Rep. 694). On the other hand, a similar possession on the part of the original owner for any part of the statutory period would interrupt the running of the statute against him, notwithstanding the tax deed is recorded. Lewis v. Disher, 32 Wis. 504; Wilson v. Henry, 35 Wis. 241; S. C. 40 Wis. 594; Coleman v. Eldred, 44 Wis. 210; Smith v. Ford, 48 Wis. 162 (2 N. W. Rep. 134; 4 N. W. Rep. 462); Stephenson v. Wilson, 50 Wis. 99 (6 N. W. Rep. 240).

A Kansas statute provides that, "any suit or proceeding for the recovery of land sold for taxes, except in cases where the taxes have been paid, or the land redeemed as provided by law,

shall be commenced within two years from the time of recording the tax deed of sale, and not thereafter." The decisions of the courts construing this statute are to the effect that an action brought after a tax deed, which was good on its face, had been recorded for two years, for the recovery of the land sold for taxes and described therein, against the grantee in the deed, or one holding under him, who was in possession of the same and had been for two years, was barred by this statute, but that it was not barred if the deed was void on its face, although the grantee, or the one holding under him, had held actual, open, notorious and adverse possession for the entire two years next after the date of recording. Taylor v. Miles, 5 Kan. 498 (7 Am. Rep. 558); Shoat v. Walker, 6 Kan. 73; Bowman v. Cockrill, 6 Kan. 311; Sapp v. Morrill, 8 Kan. 677; Hall v. Dodge, 18 Kan. 281; Waterson v. Devoe, 18 Kan, 223.

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A Missouri statute is as follows: "Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of the lands sold for taxes, or to defeat or avoid a sale or conveyance of the lands for taxes shall be commenced within three years from the time of recording the tax deed, and not thereafter." In Spurlock v. Dougherty, 81 Mo. 171, the court held that this statute did not apply where the owner was in possession; and in Mason v. Crowder, 85 Mo. 526, it held that it had no application, except where the tax deed is valid upon its face, and that adverse possession under a tax deed, void on its face, for three years from the time the deed was recorded would not constitute a bar under this statute; that the limitation of the statute is not based upon adverse possession.

From the foregoing view of authorities it appears that courts are nearly agreed in construing statutes like the five years' statute pleaded in this case, as to the time they commence running. They hold that statutes of limitation, clear and unambiguous, like the five years' statute of this State, began to run according to their words, from the date of sale, record or other day, as the time may be thereby fixed. They differ, however, as to the necessity for possession for the full statutory period on the part of the party pleading the limitation, or, if he had possession, as to the effect of it. But no question of that sort is presented for our consideration. The only questions presented, as to the five years'

statute, are, when does it begin to run, and is it applicable to this case?

The words of the Statute are, "all actions

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shall be brought within five years after the date of such sale, and not thereafter." It is clear that it commences to run from the date of sale, and not thereafter, as it declares. As it begins to run at the date of the sale, it is difficult to understand how it can bar an action when the cause of it did not arise until more than ten years after the sale had elapsed. The sustainment of a contention to that effect would lead to the absurd conclusion that all rights of action against the purchaser of land sold at a judicial sale, arising after the lapse of five years from the date of sale, are barred at the very instant the cause of action accrues. This would be equivalent to a denial of the right to be heard at all in the vindication of such rights. It is manifest that the statute was never intended to be applied in such cases, but that its object was to require all parties to bring suits against purchasers at judical sales, within five years after the date of sale, for the. enforcement of only such rights to recover the land sold as can be enforced in an action brought within that time, and to bar the recovery of such rights in any suit brought thereafter. It has no application to this action. The only statute of limitations at all applicable to this case is the seven years' statute.

According to the evidence adduced in the trial of this action in the circuit court, appellants' right of action is not barred. Reversed and remanded for a new trial. NOTE.-See Epitome of cases: Statute of limitations.

SUBROGATION.

WILTON V. MAYBERRY ET AL.

(75 Wis. 191.)

Subrogation. Where one loans money to pay off a mortgage under an agreement that he shall be secured by a mortgage on the same land, and, upon the payment of the mortgage, the debtor conveys the land

to a purhaser with notice, equity will set aside the satisfaction of the mortgage and subrogate the lender to the rights of the mortgagee. ORTON, J.

Sec. 421. Facts stated. The complaint sets out substantially the following facts: On or about the 5th day of November, 1881, the appellants William Mayberry and Martha, his wife, executed a mortgage on certain real estate in Pierce county, Wisconsin, to one Ann W. Grant, to secure to her the payment of $1,000, on the 1st day of July 1887; and said mortgage was duly recorded. On the 5th day of July, 1887, said mortgage being due the respondent loaned to said appellants the sum of $1,005 on the agreement that with said money said mortgage should be paid and discharged of record, and that said appellants should execute to the respondent a new mortgage on said land, to secure said loan. This was done on the part of the respondent in mere friendship, without any selfish interest whatever. The money was used to pay off said mortgage, and it was duly discharged of record; but, instead of said appellants giving the respondent such new mortgage, as they agreed to do, and which was the inducement of said loan, they deeded said land to John R. Mayberry, one of the appellants, with the intent to defraud the respondent out of his money. The said first-mentioned appellants had and have no other property. The said John R. Mayberry had full knowledge of said loan and said agreement. The respondent prays that he may be subrogated in place of the mortgagee of said first mentioned mortgage; and that its satisfaction of record be canceled; and that it may be declared to be a good and subsisting mortgage to him, and that it may be foreclosed. The appellants demurred to said complaint on the ground that it did not state a cause of action, and the demurrer was overruled; and this appeal is from such order.

Sec. 422. Subrogation. The learned counsel of the appellants contend that the respondent was a mere volunteer, and had no interest in the land to protect, and cannot, therefore, be subrogated as mortgagee to the mortgage paid and discharged; and cites, besides other authorities, Watson v. Wilcox, 39 Wis. 643 (20 Am. Rep. 63), and Downer v. Miller, 15 Wis. 612. In those cases it was a mere loan of money, to enable the borrower to pay off the mortgage debt, and without any agreement that the security shall be assigned or kept on foot for the benefit of

the party who loaned him the money. But this is no such case. The respondent, by the agreement, was to have equal security on the land, and, to protect that interest, caused the first mortgage to be discharged. This case is ruled in principle by Levy v. Martin, 48 Wis. 198 (4 N. W. Rep. 35). It was there a part of the contract that the executors should secure the lender by another mortgage, as here, and they did so, as they supposed; but the mortgage was void for want of authority. On the same principle are Jones v. Parker, 51 Wis. 218 (8 N. W. Rep. 124), and Carey v. Boyle, 53 Wis. 574 (11 N. W. Rep. 47). This was a most outrageous fraud on the part of the appellants, and there is no other possible remedy to the respondent but subrogation. one is injured or interested except these appellants, who committed the wrong. When they deeded the land to the other Mayberry, they supposed they had succeeded in defrauding the respondent out of his security in it; but the grantee had knowledge of the agreement, and is therefore bound. It is really a strong case for equitable subrogation.

No

By the Court-The order of the circuit court is affirmed, and the cause remanded for further proceedings according to law.

ANNOTATIONS.

Sec. 423. Miscellaneous notes on subrogation. "The general rule is well established that one who, at the request of another, pays off an incumbrance upon the latter's land, is entitled to be subrogated to the security." Trible v. Nichols, 53 Ark. 271 (13 S. W. Rep. 796). It is held that creditors will be subrogated to a lien which has been discharged with funds which should have been applied to the payment of their claims, and that a widow who is entitled to dower will be subrogated to the rights of the mortgagee on payment of the mortgage debt. Jefferson v. Edrington, 53 Ark. 545 (14 S. W. Rep. 99; 903). In order to entitle a surety to be subrogated to a vendor's lien, he must be surety for the party owing the debt secured by the lien and the lien must not have been abandoned. Walsh v. McBride et al., 72 Md. 45. "Where one claiming title to land voluntarily discharged a mortgage thereon given by his grantor, and a third party is subsequently adjudged to be the owner in fee, these facts are not alone sufficient to entitle the former to have the amount so paid adjudged a charge upon the land as against the latter." Wadsworth v. Blake, 43 Minn. 509 (45 N. W. Rep. 1131). The