75 Wis. 91 | Wis. | 1889
"We think the evidence introduced on the part of the plaintiff established the fact that the plaintiff had acquired the original title of the United States to the land in question, and that he was entitled to recover in the action, unless the evidence introduced by the defendants showed that the plaintiff had in some way been divested of such title.
The respondents claim by their brief, and by their oral argument upon the hearing of this appeal, that the defendant Gate claims title to the lands in question under a tax deed duly recorded on the 5th day of April, 1888, and that, at the commencement of this action, he was in the actual possession of said lands under such tax deed, and they make np other claim to the lands in question. The record shows that the tax deed, introduced in evidence by the defendants, was issued upon a tax sale made on the 8th day of May, 1877. The evidence further shows that the tax certificates issued upon such sale of 1877 were, on the 28th day of December, 1887, assigned by the county treasurer to one
It is claimed by the counsel for the appellant that this tax deed is void for several reasons: (1) Because it was issued upon tax certificates more than six years after the date of such certificates, and the records in,the county treasurer’s office show that it was not sold to the county,' nor owned by the county, at any time within six years previous to the date of the tax deed; (2) that the evidence shows that there were no affidavits of the advertising of the tax sale, or posting notices of such sale, filed in the county clerk’s office as required by secs. 1132, 1141, R. S. 1878. Other objections were made to the validity of such tax deed which we do not deem necessary to consider on this appeal.
Sec. 1182, R. S., reads as follows: “From and after six years from the day of sale of any lands or lots heretofore or hereafter sold for the nonpayment of taxes by any officer of any county, city, or village, no deed shall be issued on the certificate or certificates issued on such sale, and no action shall be commenced thereon; but such limitation shall not apply to certificates issued to and owned by counties or municipal corporations, or to their assigns, until the expiration of six years from the date of the assignment of such certificate by such county or municipal corporation.” Upon the part of the respondent it is claimed that these certificates were issued to and owned by the county until they were assigned to Mary E. Smith, December 28, 1887. On the part of the plaintiff it is claimed that the lands upon which the certificates were issued were, at the tax sale in May, 1877, sold to one Ira Millard, and not to the county; and, if the certificates were in fact issued to the county, they were, shortly after such sale, assigned by the county
The county treasurer, who was such in 1887 as well as on the day of trial, was called as a witness by the plaintiff, and he testified as follows: “I have the records of the county treasurer’s office in my possession. Have the sales-book for the year 1877. This is the book. Question. You can turn to the sale of the S. W. of N. E. of 1 — 22 — 14, certificate 2,128. What entry is made there in relation to the sale of that certificate? Answer. There is N. W. of S. E. of 1 — 22—14, sold to Ira Millard. It was sold December o, 1877. The same applies to certificate number 2, 129, the S. W. of N. E., the same year assigned to him. Q. What is the heading in your book over Mr. Millard’s name? A. ‘To Whom Sold.’ The next heading is, ‘Description of Land;’ the next, ‘Section, Town, and Eange;’ the next, ‘Amount of Taxes; ’ the next is, ‘ The Date of the Assignment.’ ”
If this record is to control as to the running of the statute, then more than six years had elapsed after the certificate had been assigned by the county to Mr. Millard. The truth probably is as claimed by the counsel for the defendants. The certificates were in fact issued to the county as though the county had been the purchaser, although the sales-book shows the sale made to Ira Millard, and the certificates were in fact, in December, 1877, assigned to him, with the supposition that he would pay for them and take them from the county; and, notwithstanding the testimony of Mr. Millard given on the trial, we think he never paid for the certificates or took them from the treasury, and that they remained in the treasury until 1887, when they were assigned by the treasurer to Mary E. Smith. Whether the county claimed to own the certificates during all this time is put in some doubt from the fact that in 1882 one Henry Ketchum purchased other certificates held by the
It is claimed by the learned counsel for the plaintiff that as the record of the sales made by the county treasurer shows that these lands were sold to Ira Millard in 1877 at the tax sale, and that, although the certificates issued upon such sale to Millard were in fact issued to the county, as the books also show that in December, 1877, such certificates were assigned to said Millard, the record of the transaction made by the county officers, and to which the public are to look for information as to what was in fact done, clearly establishes the fact that after December 5, 1877, the county had parted with all interest it had in such certificates (if it ever had any), and that the six-years statute, above cited, had therefore barred the right of the plaintiff to take a tax deed upon such certificates.
The record made by the county officers in regard to these certificates, we think, is conclusive as to the ownership of the certificates after December 5, 1877, and shows conclusively that on that day the title to the same passed out of the county to Mr. Millard for the purpose of setting the six-years limitation running. The record showing conclusively that the county had parted with its title to the certificates in December, 1877, any ownership of such certifi
Whether the entries made in the records of the county,, which show a sale and assignment of these certificates to-Mr. Millard more than six years before the tax deed was-issued thereon, would be an estoppel in favor of a person» purchasing such lands after the six years had run against), the certificates, if such person purchased with full knowledge that such entries in the county records were made by-mistake, and that the truth was that such certificates were-in fact issued to the county and were owned by it, need; not be decided in this case, as there is no evidence tending-to show such fact. The undisputed evidence in this case shows that the plaintiff purchased the lands in question more than six years after the certificates had been assigned to Mr. Millard, as stated in the county records, and without knowledge that there had been any mistake made in such record. Upon this state of the evidence we think the defendant’s tax deed was void, because it was issued upon tax certificates more than six years after the sale and assign-' ment of them by the county.
We also hold that there was not in this case any sufficient evidence of the publishing of the notice of the tax sale in 1877, or of posting the notices of such sale, as required by the statute. See secs. 1130, 1132, 1141, R. S. 1878. Sec. 1130 requires the county treasurer to cause certain notices of the tax sale to be published in a newspaper, and also
On the trial in this case, the plaintiff proved by the present county clerk and the deputy county clerk that they had searched the office of the county clerk, and were unable to find any proofs of publication or proof of posting the notices of the tax sale of 1877. This proof rebutted the presumption of fact which the production of a tax deed in due form raised in favor of the regularity of the tax proceedings, as to the publication and posting of the notices of such sale, and made it incumbent on the person claiming under the tax deed to show that such proofs of publication, and of the posting of the notices of the tax sale, were in fact made as required by the statute. See Jarvis v. Silliman, 21 Wis. 599. After the proofs were made, showing that no affida
We think it very clear that the parol evidence, in order to sustain the tax deed, in the absence of the affidavits required by law to prove such publication and posting of notices, must show that such affidavits did, upon their faces, state the facts required by the statute, and show that such notices were published and posted as required by law. It was correctly held by the court in Iverslie v. Spaulding, 32 Wis. 394, 396, that the fact that such publication and posting was made could not be proved by parol on the trial of the action. In that case the chief justice said:, “We are inclined to think that the evidence offered was properly excluded. The law made it the duty of the county treasurer to make an affidavit of the posting of such statement and notice, which, together with the affidavit of the publication, was to be carefully preserved by him, and immediately after the close of the sale deposited in the office of the clerk of the board of supervisors of the county. These were to be filed and preserved by the clerk in his office, and they were made prima facie evidence, of the facts therein stated in all judicial proceedings. Now, the object of these provisions, in thus requiring these affidavits to be filed and preserved in the office of the clerk, doubtless was to enable all persons interested in the matter to ascertain from them whether the law in regard to the posting and publication of notice of sale had been complied with. It was to perpetuate this evidence, and was intended
I have quoted this, not for the purpose of showing that it was incompetent to prove by parol evidence the contents of the affidavits of the publication and posting of such tax-notices, when it is shown that such affidavits were in fact made and deposited as required by the statute, but were lost, and could not be found on the trial, but'for the purpose of showing that the parol evidence in this case wholly failed to show that the affidavits claimed to have been made in. 1877 stated the facts required by law to be stated therein. The record shows that the witness, who was the treasurer in 1877, testified upon that point as follows: “Question. State whether any proof was made of that sale, and filed in the office by you as county treasurer.” This question was objected to, and the court permitted the witness to answer. lie answered, “ There wras.” The witness was then asked whether the proof required by law was made and filed. The answer was, “ They were.” lie also testified that he knew they were in the clerk’s office during his term of .office. On cross-examination, the witness testified that he “ did not know the date when he made these reports of the certificates of notice and posting of the notice for the sale of 1877;” that he “did not know the date he filed it.” lie said he was “confident they contained all the requirements of the lawr.” To the following question, viz.: “Can you state from your memory what it contained? ”■ he .answered: “I cannot just say what it con
If the evidence introduced in this case on the part of the defendants is sufficient to sustain the tax deed, in the absence of the Record of the proofs required by statute, it would be in the interest of all tax-title claimants to see that the record was removed from the proper office, so as to let in parol evidence of such record. It is undoubtedly true that the existence of a record may be proved by parol when such record has been once made -and is lost or destroyed; but in such case the proof must first show that there was a record, and its loss or destruction, and, if the contents of such lost record are material to sustain the rights of the party attempting to prove the same, the parol evidence must show what such contents were.
We think the tax deed was void for the want of any proof of a compliance with the law in making proof of the publication and posting required by law.
A very voluminous record of another action, between other parties, Was injected into this case, for what purpose is not clearly stated in the record, and we were not informed on the argument of its pertinence in this action. If it had any bearing upon the rights of the parties to this action, we think it was the duty of the attorneys for the defendants to clearly point out what parts of such record were pertinent, and not leave it to this court to search it out by a perusal of its entire contents.
The question .whether, after one person, who is, at the time, owner of a tax certificate, gives the statutory notice required to entitle him to a tax deed, such deed can issue to a third person simply upon producing such certificate to the county clerk, with the proofs of the service of such notice, is not determined in this case.
JBy the Oourt.— The judgment of the circuit court is reversed, and the cause remanded with directions to that court to render judgment in favor of the plaintiff.