Knox v. Huidekoper

21 Wis. 527 | Wis. | 1867

Cole, J.

The county court ruled out the tax deed offered in evidence, because it was not upon its face prima facie evidence of title. A number of objections were taken to the deed in the court below, which are insisted upon here at greater or less length. They will be considered in the order they were taken.

The first objection is, that the deed did not purport to be signed by any officer known to the laws at the date of its execution. In the testatum clause of the deed, the officer describes himself as “ the clerk of the county board of supervisors of the county of Milwaukee,” and signs and executes the deed under the corporate seal of the county, as “ clerk, board of supervisors, Milwaukee county, State of Wisconsin.” Now it is claimed that inasmuch as the 8d section of chap. 129, Laws of 1861, declares that “ the county board of supervisors ” shall be a body corporate known by and under the name and style of the county board of supervisors of (naming the county),” that there was no such officer as “ clerk, board, of supervisors’’ &o., and that this mistake in the designation of the title of the officer renders the deed invalid. We consider the objection quite untenable. In the law of 1859, which prescribes the form of a tax deed (sec. 50, chap. 22), the office is designated as “ the office of the clerk of the county board of supervisors of the county of-while in the 51st section the officer is spoken of as “ the clerk of the county board of supervisors,” and “ the. clerk of the board of county supervisors.” The 6th section of the act of 1.861, above referred to, provides for “the first election for clerk of the board of county supervisors,” when but a moment before the legislature had enacted that the technical corporate name of the board should be “ the county board of supervisors of-.” Erom these instances, and numerous others which might be cited from our statutes, if -necessary, it will be seen that no certain title or description of the office of the clerk is given, he being indiscriminately named “ clerk of the county board of supervisors,” “ clerk of the board of county supervisors,” or “ clerk of the board of supervisors,” when referred to by the legislature. Chapters 898 and 899, Laws of 1862; chapters 290 and 292, Laws of 1863 ; chapters 120 and 460, Laws of 1864; chapters 124 and 264, Laws of 1865. Either one of these descriptions is sufficient to identify the officer and show his relations to the board, and we think fully meets the requirements of the law.

The second objection is, that the deed should be sealed with the private seal of the clerk executing it. This objection has been overruled in the case of Woodman v. W. L. Clapp et al., [ante, p. 355], where it was held that the law of 1859 only required one seal to be affixed to a tax deed, and that this seal should be the corporate seal of the county or municipal corporation.

The next objection is, that the deed was invalid because it was not stamped prior to the commencement of the action. Without expressing any opinion whatever upon the question whether it was necessary to stamp the deed in order to mate it valid, it is a sufficient answer to say that it appears the instrument was stamped by the collector of the proper district under the authority given him by the act of March 3, 1865, within twelve months after the same was executed. See Laws of the 38th Congress, p. 482.

Again, it is said there was no proper or sufficient recital in the deed offered in evidence, of the assignment of the certificate of tax sale by the county to the plaintiff. The deed in this particular follows the form given by the law of 1859, and recites that “ Thomas M. Knox, assignee of the county of Milwaukee, has deposited in the office of the clerk of the board,” &c., eight certificates. This was in strict conformity to the statute, and must be held sufficient. See Woodman v. H. S. Clapp, [ante, p. 350.]

It is also objected, that it appeared from the deed that only one-half of a lot was sold, which was unauthorized. It is insisted that the law requires the assessment and sale of real estate in entire 'lots, although parts of the lot may belong to different owners. We do not so understand the law. The statute requires the assessor to list each parcel of real estate subject to taxation within his town, city or ward, in numerical order as to lots and blocks, with the name of the owner, if known, set opposite to each parcel. Section 23, chap. 386, Laws of 1860. And when part of a lot belongs to one person and part to another, it is clearly the duty of the assessor to assess each part to the proper owner.

The law of 1859 required, when, for any cause other than therein provided, lands were not sold in April, that they should be advertised and sold on the first Tuesday of September following. Section 4. This disposes of the last objection taken to the deed.

"We are of the opinion that the deed was valid on its face, and that it was improperly ruled out by the county court.

By the Court. — The judgment of nonsuit is set aside, and a venire de novo awarded.