| Wis. | Jan 29, 1884
This is .an action of ejectment against the defendant in possession; and in the complaint it is alleged that the defendant entered upon the land and cut off valuable timber, and committed great waste thereon, and the prayer therein is for the recovery of the possession of the land, and for damages for withholding the possession, and for the
1. The recorded tax deed, by virtue of which the defendant claims the benefit of the statute of limitations, is substantially set out in the answer, and the deed itself‘is appended to the complaint as an exhibit. The setting up the tax deed in the answer, which showed that the statute of limitations, by virtue of it, had run against the plaintiff’s action, was held a sufficient pleading of the statute, without further averments. Knox v. Cleveland, 13 Wis., 245" court="Wis." date_filed="1860-01-02" href="https://app.midpage.ai/document/knox-v-cleveland-6598333?utm_source=webapp" opinion_id="6598333">13 Wis., 245; Dean v. Earley, 15 Wis., 100" court="Wis." date_filed="1862-05-15" href="https://app.midpage.ai/document/dean-v-earley-6598639?utm_source=webapp" opinion_id="6598639">15 Wis., 100; Whitney v. Marshall, 17 Wis., 174" court="Wis." date_filed="1863-06-15" href="https://app.midpage.ai/document/whitney-v-marshall-6598974?utm_source=webapp" opinion_id="6598974">17 Wis., 174. This answer .in due form pleads the bar of the statute in connection with the tax deed so set out and appended, and of course is sufficient in this respect. It does not state the particular statute of limitations relied on, but it does allege that three years, one year, and nine months had elapsed before the action was brought since the recording of the tax deed. The benefit of all of the statutes of limitation is claimed. This, at most, was a mere uncertainty, or indefiniteness, which could have been remedied by a motion, and is not ground of demurrer. Flanders v. Mc Vickar, 7 Wis.,
2. Whether the defendant was in actual possession, or the land was vacant, during the period of limitation, is quite immaterial; but the answer virtually admits the possession as alleged in the complaint. More than nine months had elapsed before the suit was brought, and since the recording of the tax deed. This is sufficient to create the bar of the statute against the plaintiff’s action of ejectment. Sec. 6, ch. 334, Laws of 1878; sec. 1210d, R. S.; sec. 1, ch. 250, Laws of 1882.
3. The main point made in this case for the respondent is that the tax deed was not entitled to registration by reason of the insufficiency of the acknowledgment. The certificate of acknowledgment is that, “ before the undersigned, a notary public in and for said county, personally appeared F. J. Wood, county clerk aforesaid, and acknowledged that he executed the above deed as county clerk of the county of Wood, state of Wisconsin, for and on behalf of said county and state, for the purposes therein mentioned.” There is in this certificate an absence of the clause between the words “ aforesaid ” and “ and acknowledged,” required to be substantially inserted therein by the statute (sec. 2217, K. S.), and found in the form prescribed in said section, as follows: “ to me known to be the person who executed the foregoing instrument.”
The statute requires only that the certificate shall be “ substantially ” in that form, if it does so require, which, from the language, “shall be sufficient if made substantially ” in the form prescribed, may be doubtful. Treating, however, this language as imperative, the question is whether this certificate is substantially in this form. The law of the District of Columbia required the officer to certify “ that the grantor was known to him, or that his identity
The statute of California in respect to acknowledgments is similar to that of the District of Columbia above referred to, only, if possible, more stringent, requiring the certificate to. have those identical words, or the deed could not be recorded. The California cases cited by the learned counsel of the respondent are, therefore, not authority in this case under the peculiar phraseology of our statute, where the exact words need not be used if the identity of the person making the deed and acknowledgment is substantially certified in another form.
The statute of Illinois requires absolutely that the certificate shall state that the grantor was known to be the person, making the acknowledgment, and hence the case of Tully v. Davis, 30 Ill., 103" court="Ill." date_filed="1863-01-15" href="https://app.midpage.ai/document/tully-v-davis-6950851?utm_source=webapp" opinion_id="6950851">30 Ill., 103, and other cases in that state on the same point, are not authority. Under such statutes, which must be pursued strictly, according to the authorities cited by the learned counsel of the respondent, any deviation from the verbal requirements would be fatal to the acknowledgment. And so it may be said of the statute and the decisions thereunder in other states, cited by the respondent’s counsel. But under the strict statute of Í84T of the state of Illinois,
In Jackson v. Gumaer, 2 Cow., 552" court="N.Y. Sup. Ct." date_filed="1824-02-15" href="https://app.midpage.ai/document/jackson-ex-dem-merritt-v-gumaer-5464141?utm_source=webapp" opinion_id="5464141">2 Cow., 552, and in Thurman v. Cameron, 24 Wend., 87, under the statute of New York, requiring such words to be used in the certificate, and where it was stated therein only that the grantor “ was known ” to the officer, without the addition of the words “ to be the person who executed the instrument,” the certificate was held sufficient.
From the authorities, therefore, as well as reason, the deed and its attestation may be resorted to, if necessary, to show, together with the certificate, that the officer knew that the person who makes the acknowledgment is the person who executed the deed, and has substantially so certified.
Here the deed was executed by a county clerk of a certain' county by his signature and name of office and under his official seal, and King, the notary who took the acknowledgment, was one of the attesting witnesses to the deed, and his certificate is that “E. J. Wood, county clerk afore
By the Court.— The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.