Lain v. Cook

15 Wis. 446 | Wis. | 1862

By the Court,

Cole, J.

As we have arrived at the conclusion that the tax deed offered in evidence in this cause was radically defective, it will not be necessary to notice the other points made upon the briefs, and discussed by counsel on the argument.

The deed was made under Chap. 66, Laws of 1854, and undoubtedly was intended to be in strict compliance with the form therein prescribed. But it is not. In the form prescribed by this law, the words “ as the fact is ” are inserted in two different places; one of which relates to the sale of the land which is about to be conveyed, and the other the land, by tbe owner or claimant, from snob sale. Neither these words nor any equivalent language is inserted in this deed, and for that reason we deem it defective.

There can be no doubt that it is éntirely competent for the legislature to prescribe the form of a tax deed to transfer title, and where a particular form is prescribed, it must be substantially, if not literally pursued, or the deed will be void. Chandler vs. Spear, 22 Vermont R., 388; Ferris vs. Crow, 5 Gilman, 96; Smith vs. Hileman, 1 Scammon, 323; Atkins vs. Kinnan, 20 Wendell R., 246. The statute under which this deed was executed declares that the deed “ shall be substantially in the following or other equivalent form,” giving the form of the deed. Now the question arises-ADoes this deed meet the requirements of that law ? It appears to us that it does not,, because of the omission of the words referred to. The office or purpose of this language “ as the fact is,” which is required to be inserted in the deed, seems to be in .the nature of a certificate or averment on the part of the officer who executes the deed, that he has examined the records and found the facts to be as stated in the deed. It thus becomes a written declaration under the-hand of the officer, that the matters in the deed are true. This seems to be the intention of the legislature in requiring these words to be inserted in the deed, and in that view the language becomes material and cannot be omitted.

It was however claimed and insisted by the counsel for the appellant, that these words were not intended to be inserted in the deed at all, and if not, were surplusage in the statute, at most merely designed to direct the officer as to the manner of making out the deed ; that they were like the directions which are frequently inserted in blank forms to show the proper way of filling them up. I was at first inclined to adopt this view of the matter, and the more so because those words in the printed statute are included in a parenthesis; but on reflection I am satisfied it is unsound. It is very true I could not possibly see what was to be inserted in the place of the language “ as the fact is,” or what they could possibly refer to either in the antecedent or subsequent clauses in the deed. They could not be in the nature of directions to the officer for filling up tbe deed, since there nothing to be inserted in their stead. Besides, this construetion obviously gave the words no meaning or force whatever, and was m violation of the familiar rule that some effect must be given to every word of the statute if possible. Moreover, on looking at the original law in the office of the secretary of state, I find that these words, “ as the fact is,” are not included in parenthesis, as they are in the printed statute. This confirms me in the opinion that the suggestion that the words were intended merely as a direction to the officer for filling up the deed, is not correct. And this view is further strengthened by the'language used in the form given in chapter 503, Laws of 1852, for which these words “ as the fact is” seem to have been substituted in the law of 1854. That language is, “ and whereas it appears from an examination of the records in my office that said land is unredeemed,” &c. The legislature must have considered the words “ as the fact is,” inserted in the tax deed under the law of 1854, as equivalent in meaning to the above clause contained in the deed made under the law of 1852. ■ They thus become a written declaration under the hand of the officer, intended to verify or substantiate the facts stated in the deed. This, beyond all question, renders them matters of substance, and their omission from the deed is a fatal defect in the instrument.

It follows from this that the judgment of the circuit court must be affirmed.