Hiles v. Atlee

90 Wis. 72 | Wis. | 1895

Cassoday, J.

The question on the former appeal was whether the nonsuit was properly granted for want of proper evidence of title in the plaintiff. 80 Wis. 219. The •objection now raised to the plaintiff’s title is to the effect that the original title found to have been acquired by the plaintiff must be deemed to have been divested by the tax title acquired by "Weston, Miner, and Kingston.; that Weston died prior to the time when the plaintiff acquired that title; that Weston’s will was admitted to probate, January 3, 1888; that, after providing for the payment of debts and specific legacies of personalty and money, the deceased, by bis will, gave, granted, bequeathed, and devised to Ms wife,. Elizabeth Weston, and to her heirs and assigns forever, the remainder and residue of all Ms property, both real and personal, wherever situated, of which he died seised, and also-therein appointed his said wife and his daughter, Emma, executrices of his said will, and thereby authorized and empowered them, among other things, to sell and convey real estate, and dispose of or exchange any property for the interest of the estate; that the deed from Miner and Kingston and their wives and the said Elizabeth Weston to the plaintiff, executed October 12,1888, and recorded October 13, 1888, did not convey Weston’s one-third interest M the lands.

Our statute provides that “ every devise of land in any will shall be construed to convey all the estate of the dev-isor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.” R. S. sec. 2278. Under this statute and the decisions of this court it is very obvious that the widow,, as such residuary devisee, took at once, on the death of the testator, all of Ms right, title, and interest M the land in question, subject of course to the payment of his debts and the specific legacies provided for in the will. In re Estate of Pierce, 56 Wis. 560; Newman v. Waterman, 63 Wis. 616; Scott v. West, 63 Wis. 570; Prickett v. Muck, 74 Wis. 205; Baker v. McLeod's Estate, 79 Wis. 534. It follows that, unless the defendants had acquired the paramount title to the land as. contended, the trial court properly held that the plaintiff' was entitled to recover the land and the value of the timber which the defendants had taken therefrom. Webber v. Quaw, 46 Wis. 118.

The defendants claim, title to the land and the timber removed therefrom under and by virtue of the tas deed to-Hyde and Pitts, dated December 1, 1816, and issued on the tax sale of September 3, 1812, as found by the court and mentioned in the foregoing statement. It is conceded that that-deed was properly executed by the county clerk of Wood county, who thereunto subscribed his name officially, and affixed the seal of the county board of supervisors of said county thereto, in the presence of two witnesses, who subscribed their names thereto as such; that the said clerk at the same time duly acknowledged, before a notary public of said county, that he had voluntarily executed said deed, as such clerk, for the uses and purposes therein mentioned;, that said notary thereupon properly certified such acknowledgment so as to entitle said deed to be recorded; that December 14,1816, said deed was presented to the register’s-office for record; that the register of the county thereupon indorsed upon said deed the following, to wit: “ Eegister’s Office, Wood Oo., Wis. Deceived for record the fourteenth day of December, A. D. 1816, at 10 o’clock A. M., and recorded in Book Q of Deeds, on page 103. W. T. King,. Eegister.”' It is further conceded that said deed was thereupon properly and accurately copied into the appropriate-record book, except that the official seal of the board of supervisors of said county affixed to said deed was not copied therein, and that there was nothing in said record book to-indicate that such official seal or any seal of said county or said clerk had ever been affixed to said deed, other than the recital in the deed, as already mentioned. By reason of such absence from the record of anything to represent such official seal, the trial court held that such deed was not recorded, within the meaning of the statute which declares, in effect, that the owner or occupant of any land sold for taxes- “ may, in like manner, redeem any such lands, or any part thereof or interest therein, at any time before the tax deeds executed upon sucb sale is recorded, and when so redeemed such deed shall be void.” R. S. sec. 1165. Accordingly, tbe trial court found tbat November 20, 1888, tbe plaintiff redeemed said lands from tbe tax sale of September 3, 1872, upon wbicb said tax deed was issued, paying tberefor to tbe county clerk tbe sum of $67.96, and taking bis receipt tbere-for, wbicb is in evidence, and wbicb .states, in effect, tbat tbe plaintiff claimed sucb right to redeem by reason of tbe absence of sucb seal.

Tbe county clerk, as sucb, was only authorized to execute a tax deed in tbe name of tbe state and of bis county, “ under bis band and tbe seal of tbe county.” R. S. sec. 1176; Woodman v. Clapp, 21 Wis. 355. Tbe recital in tbe deed tbat tbe county clerk affixed tbe seal of tbe county board of supervisors of tbe county must be regarded as equivalent ¡to and in effect a recital tbat be executed tbe deed “ under bis band and tbe seal of tbe county,” as prescribed by tbe statute. Putney v. Cutler, 54 Wis. 66; Dreutzer v. Smith, 56 Wis. 292; Bulger v. Moore, 67 Wis. 430; Brown v. Cohn, 85 Wis. 1. Tbe precise question presented, therefore, is whether sucb absence from tbe record of anything to represent sucb official seal was sucb a defect in tbe record as to authorize tbe plaintiff to so redeem.

“ Tbe statute nowhere requires tbe register to make 'a fae svmile of tbe original5 impression of an official seal, as in case of recording a map. Sec. 2262, R. S.” Putney v. Cutler, 54 Wis. 69. “ It fails to give any direction, as to bow tbe official seal or tbe impression of it is to be represented on tbe record. No one would be so impracticable as to claim tbat tbe impression of tbe seal itself should be made upon tbe record.” Ibid. This court has repeatedly held tbat a scroll, with tbe word “ Seal ” written therein, was a sufficient representation of tbe corporate seal to satisfy tbe recording act. Huey v. Van Wie, 23 Wis. 613; Putney v. Cutler, 54 Wis. 66; Brown v. Cohn, 85 Wis. 1. There was no difficulty , therefore, in making the record of the deed represent that “ the seal of the county ” was affixed. But no such representation was made; and the question is whether the record, without such representation, barred the fight of redemption.

As aptly stated by the learned trial judge: “ If the recording officer may omit to note upon the record of a tax deed a copy of the seal, or some equivalent representation thereof, as evidence that the deed was in fact sealed, why may the register not also omit the signature of the county clerk who executed the deed? One is as necessary as the other to a valid tax deed, and, in the case at bar, both are properly vouched for as being present by the attestation clause, as shown by the record. It will.hardly be claimed that the record would be valid for any purpose if a copy of the clerk’s official signature were omitted therefrom. It is difficult to see any substantial reason for excusing the absence from the record of a representation of the seal which would not be equally applicable to a like absence of a copy of the clerk’s signature.” This court has repeatedly held that the statutes authorizing the original owner to redeem from tax sales are to be liberally construed. Jones v. Collins, 16 Wis. 594; Karr v. Washburn, 56 Wis. 303; Lander v. Bromley, 79 Wis. 378; Begole v. Hazzard, 81 Wis. 274, 278. To the same effect is Barrett v. Holmes, 102 U. S. 657. To bar the original owner from redeeming from a tax sale, there must not only be a tax deed, valid upon its face,, but such deed must be recorded. Where such deed is void upon its face, or where it appears from such record that the deed is void upon its face, there can be no such bar; and this must be so whether such record is a correct transcript of a deed void upon its face, or a false transcript of a deed valid upon its face. In other words, to make the record of a tax deed operate as such bar, it must appear therefrom that it is the record of a tax deed valid upon its face. Lander v. Bromley, 79 Wis. 376, 377. The substantial requirements of the statutes must appear from the record itself. Even where a tax deed valid upon its face is delivered to tbe register for record, and by him correctly recorded at length in the record book, yet it is not to be considered as recorded until the' proper entries thereof are made in the general index required to be kept by the register. Ibid. “ In other words,, it is not only essential that there should be a record of a tax deed, valid upon its face, but the requisite index to such record. The false statement in this record is of such a character that it was not and could not be helped out by the-index.” Ibid. In Wood v. Meyer, 36 Wis. 313, the original tax deed under which the defendant claimed title was not offered in evidence, but the record of it was put in evidence. Prom that record it appeared that there was only one witness to the deed, and it was held that the deed so executed was not entitled to record, and that such record was not admissible in evidence and hence was properly excluded. The same rule has been applied to the record of a deed executed by a private party, from which it appeared that there was no witness or only one witness. Gilbert v. Jess, 31 Wis. 110; Pringle v. Dunn, 37 Wis. 449. The absence from the record of any representation of such official seal is certainly as objectionable and fatal as the omission therefrom of the name-of a witness would have been. It may be that a different rule has been applied in some other jurisdictions; but it is very important that the law respecting real estate should be-steadily adhered to, and so we must hold that the tax deed in question was not recorded so as to bar the redemption under sec. 1165, R. S.

By the Gourt.— The judgment of the circuit court is affirmed.