Bach vs. Parmely. 1 Black. Com., 443, 444, note 46; 2 Kent's Com., 179; 1 Greenl. Ev., § 340; Davis v. Dinwoody, 4 Term, 678; Burrell v. Bull, 3 Sandf. Ch., 15; Scheffler v. The State, 3 Wis., 844; Farrell v. Ledwell, 21 Wis., 182, and cases there cited. If it be claimed that she was defendant's agent and therefore her testimony was admissible, we answer that in any case a wife's agency must be first shown before she can testify in an action to which her husband is a party. Alexander Wilson, contra, contended that in Birdsall v. Dunn, 16 Wis., 235, this court held that the rules of the common law, excluding witnesses either on the ground of interest or of public policy, are not inflexible, but yield to the exigencies of particular cases where the purposes of justice require it. The law at the time of marriage made Mrs. Parmely her husband's agent for the purchase of such necessaries as he might refuse to supply, and left him no authority to withdraw the agency. And whenever the husband abandons the wife, turns her out of doors, or treats her with extreme cruelty, he is chargeable with necessaries furnished her by a third person. No one can testify to these acts of cruelty so well as the wife, and her testimony was proper as agent for the husband in contracting for necessaries without which her life itself was imperiled. DIXON, C. J. The only question of any difficulty or importance in this case arises upon the exception to the ruling of the court permitting Mrs. Parmely, the wife of the defendant, as a witness for the plaintiff, to prove the acts and miscon duct of the defendant by which he, without sufficient cause, turned her, the witness, out of doors without provision, and under circumstances to make him liable for necessaries supplied her by the plaintiff. If the wife were not competent to testify in such case, it would often, and probably in a majority of instances, happen that no proof of the facts and circumstances attending her expulsion and showing that she was driven from Bach vs. Parmely. her home by the cruelty and misbehavior of her husband, could be given; and the result would be that no means would exist of enforcing that duty which the law imposes upon the husband to pay for the necessaries furnished to the wife thus driven out homeless and starving into the world. Mr. Bright says that the assent of the husband to the contracts of his wife for the purchase of articles of necessity under such circumstances is implied by a fiction of law founded on his duty. to provide such articles for her, and independently of any evidence from which it can be inferred as a fact that she has his authority to bind him; and he places the liability of the husband on the ground of contract thus entered into through the implied agency of the wife. 2 Bright on Husband and Wife, p. 6, § 3, and p. 10, § 18. Mr. Parsons rejects the idea of agency, and says that the responsibility of the husband for necessaries supplied to the wife rests solely on the duty which grows out of the marital relation. 1 Parsons on Contracts (5th ed.), 350. In either view we think the wife a competent witness to prove the cruelty and misconduct of the husband, and that he drove her from home without provision for her maintenance and support. Upon the theory that she is agent of her husband, her testimony would be admissible according to numerous decisions of this court referred to by counsel for the plaintiff. See O'Conner v. Insurance Co., 31 Wis., 160, 168, and authorities there cited. On the opposite theory, or that there is no agency, her testimony should be received on the ground of necessity, and that there would be a failure of justice without it. In general the wife is debarred from being a witness for or against her husband; but to this rule there are exceptions at law as well as in equity, as will be seen from the authorities above cited, where, from the nature of the inquiry, the information to be expected is peculiarly within the knowledge of the wife, and where to exclude such evidence would occasion insecurity to that relation in society which it is the object of the rule to protect. This case was within the exceptions to the general rule, Wilson vs. Henry and others. and the testimony of the wife was properly received. It was admissible upon the same principle governing the reception of such evidence in criminal prosecutions against the husband for acts of violence on his part threatened or committed upon the person of his wife. The exception rests upon the same grounds of necessity and public policy. The verdict is an anomaly, and such a one as no jury ought have rendered. It stultifies the jury. The plaintiff was not entitled to recover anything, unless the wife had legal cause for leaving her husband; and if she had, the plaintiff should have recovered his entire bill. The jury have found that the wife had good cause for leaving her home, and yet have given the plaintiff but one dollar; but as the plaintiff is not here complaining of that, it is not for us say more upon the subject. By the Court.-Judgment affirmed. WILSON VS. HENRY and others. TAX DEED: ADVERSE POSSESSION: EVIDENCE. (1) Former rules approved and explained. (2) Person whose title is sought to be cut off by tax deed regarded as true owner. (8) Evidence of adverse constructive possession under tax deed strictly construed. (4) Actual occupancy by former owner bars claimant under tax deed. (5) Evidence of adverse possession by original owner. 1. The rules that "evidence of adverse possession is always to be strictly construed, and every presumption made in favor of the true owner," and that “the party whose title is to be destroyed or remedy barred may properly stand on the letter of the statute, and insist upon a strict compliance with its provisions" (Sydnor v. Palmer, 29 Wis., 226, 251-3), approved and explained. 2. In a contest between a tax title claimant and the person whose title is sought to be cut off, or remedy barred, by virtue of adverse possession under the tax deed and of the statute of limitations, the rules above stated apply in favor of the latter as the "true owner;" and this not withstanding any technical defects found in some of the conveyances which form his chain of title. VOL. XXXV.-16 Wilson vs. Henry and others. 3. In such a case the evidence of adverse constructive possession under the tax deed must be strictly construed, and the party defending against such tax deed may avoid the bar of the statute by showing any actual occupation and use of the premises under his title, for any portion of the three years limited by the statute. Lewis v. Disher, 32 Wis., 504. 4. Such actual occupancy by the former owner during any considerable portion of the period mentioned, bars the claimant under the tax deed who does not bring his action within that period. 5. In an action brought by one claiming under a tax deed recorded in 1858, to bar the title of the original owner, defendant offered to show that from 1858 to the commencement of the action, during the mining season of each year, from two to ten miners had constantly worked and mined for lead ore upon said land, they being usually farmers, working their farms during the summer, and mining during the winter, and working the land under verbal leases from defendants or their agent, to whom they paid rent; also "that a custom exists where this land is situate, making it obligatory upon the land owner to hold mineral diggings for the miner operating them, during the summer season, though the miner does not work during such summer season;" also that said mining "was mostly near the surface and in open cuts, so as to be plainly visible to all," etc. Held, that it was error to reject this evidence, as the facts stated would have shown the action to be barred by the statute. APPEAL from the Circuit Court for Iowa County. Action for an alleged trespass committed by defendants October 21, 1871, upon land of which plaintiff claimed right of possession, with actual possession and title in fee simple The answer of the defendant Henry denied plaintiff's title, and charged that one Stephenson was the owner in fee simple and entitled to the possession; that Stephenson had been the owner and in actual possession of the land since 1857, and the parties from whom he derived title had been the owners and in possession since 1847; that Henry had acted as agent for Stephenson for many years in collecting rents from and paying taxes on the land, and as such agent had been in actual possession since 1856; that the tax deed under which plaintiff claimed title to the land was dated February 3, 1868, and exe Wilson vs. Henry and others. cuted to one Moffett, but that Moffett never obtained or attempted to obtain possession of the land under the deed, and that more than three years had expired from the date of the tax deed before the action was commenced: wherefore defendant claimed the benefit of the statute of limitations against such tax deed. Plaintiff replied, alleging that the tax deed to Moffett was duly recorded February 3d, 1868, and that Moffett, on the 15th of April, 1868, conveyed to plaintiff; that at the date of recording the tax deed the lands were unoccupied and unimproved; that neither Stephenson nor Henry had been in the actual, continued adverse possession of the premises for three years next succeeding the date of the tax deed; and that they had not paid the taxes for each of the three years since said date, and had not held the premises adversely to plaintiff. Upon the trial, plaintiff put in evidence the tax deed to Moffett, and Moffett's deed to himself, and testified that prior to October, 1871, the land in question had never been inclosed, nor had it been actually occupied or worked in any manner, except that considerable mining had been done upon it; and that in 1870 he gave written leases to one Holmes and one Hildreth, "giving them permission to dig on the land," and in the winter of 1871-2, one West paid him rent for the use of the land in mining. Defendant put in evidence a patent of the land from the United States to one Tuttle, and certain mesne conveyances terminating in a deed to one Collier, together with the will of Collier, and a deed of the land from his executors to Stephenson in 1857. For certain irregularities these instruments were ruled out as direct evidence of the transmission of the title from Tuttle to Stephenson, but were allowed to be read in connection with any evidence of possession by Stephenson under claim of title founded upon such instruments, to establish his title by adverse possession. The defendants admitted that the land had never been fenced or cultivated; but they offered to prove that Henry had been the agent of Stephenson since 1858, to look after the land, and that as such |