Laughlin v. Kieper

125 Wis. 161 | Wis. | 1905

1Wa t?.sttaT.T., J.

A conclusion has been reached without considering any question discussed by counsel other than such as concern the tax deed under which appellant claims title.

It is contended that the attesting clause of the Gaiser tax. deed is defective because the recital as to the seal affixed thereto is in these words: “Seal of the county board of supervisors,” instead of words describing the seal as the county-seal. True by subd. 8, sec. 669, Stats. 1898, the only seal for the authentication of instruments officially executed by the county clerk at the time of the execution of the deed in question was the “seal of the county;” that the county board of supervisors of the county, as a corporate body, had no seal, and sec. 1176, Stats. 1898, expressly provided, as to tax deeds, for their execution under the “seal of the county,” hut it is settled law that strict accuracy in the words of a tax deed is not necessary. A form is prescribed, and it is provided that a deed in substantially such or an equivalent form shall he sufficient. Sec. 1178, Stats. 1898; Hunt v. Stinson, 101 Wis. 556, 77 N. W. 901. So if the term used in the deed in question was substantially the same as the one that should have been used it is a fair equivalent therefor, and the irregularity is not material.

The name of the seal formerly used by a county clerk in .authenticating his official acts, and the only county seal, was known as the seal of the county hoard of supervisors. The legislature, in effect, gave thereto a new name, viz.: “The seal of the county.” When the old name is used no one is misled thereby. It suggests at once to every person of reasonable intelligence in respect to public matters, that it stands for the “seal of the county.” The new and old terms are really equivalents and it has been so repeatedly held in each of several instances where the irregular use of the old form was relied upon to defeat a tax deed. Hiles v. Atlee, 90 Wis. 72, 62 N. W. 940; Putney v. Cutler, 54 Wis. 66, 11 N. W. 437; Dreutzer v. Smith, 56 Wis. 292, 14 N. W. 465; Bulger v. Moore, 67 Wis. 430, 30 N. W. 713; Brown v. Cohn, 85 Wis. 1, 54 N. W. 1101.

The'seal impressed on the deed was named in the seal itself as “the seal of the county clerk.” The statute does not provide any form therefor. That is left entirely to the ■county boards. If the seal adopted in any ease includes the words “seal of the county clerk” it is the county seal just the •same, though the use of such a -designation would not be very appropriate. . The impression on the deed here is in the proper place for the county seal and has every appearance of Raving been made as snob. All reasonable presumptions are to be indulged in which will support tbe instrument, instead of turning to others for tbe purpose of defeating it. Hunt v. Stinson, supra. Tbe criticisms mentioned in tbe brief of counsel'on this point are plainly ruled in favor of appellant by Brown v. Cohn, supra.

It is suggested that tbe acknowledgment of tbe deed is faulty, in that tbe county clerk did not therein expressly affirm that be executed tbe deed, using tbe term “acknowledged that tbe same was executed,” etc., in lieu of tbe term “acknowledged tbe execution thereof by him,” etc. There-is no special statutory form for tbe acknowledgment of tax deeds. Tbe statute merely provides, sec. 1176, that tbe county clerk, as a part of bis duty in tbe execution of a tax deed, shall acknowledge tbe same. Tbe statutory requirement as to acknowledgments generally applies. Sec. 2217,. Stats. 1898. That does not require that tbe party executing tbe deed shall in set words acknowledge that be executed it. Tbe language of tbe form is: “Personally came before me . . . -the above (or within) named A. B. ... to me known-to be tbe person who executed tbe foregoing . . . instrument and acknowledged tbe same,” — the words “to have been executed by him” being a part thereof by necessary implication. It will readily be seen that tbe form of tbe acknowledgment in question is a full equivalent for tbe statutory form. That is enough since it is expressly provided that any acknowledgment substantially in tbe statutory form is proper. Tbe language of tbe acknowledgment, “personally came before me, O. S. Hopkins, county clerk,” etc., “to me known to be tbe person so described in, and who executed tbe foregoing instrument, and acknowledged that tbe same-was executed,” etc., by necessary implication affirms that the execution was made by such clerk. Acknowledgments quite similar to tbe one in question have been repeatedly sustained. Milledge v. Coleman, 47 Wis. 184, 188, 2 N. W. 77; Schei-ber v. Kaehler, 49 Wis. 291, 5 N. W. 817. In Milledge v. Coleman, supra, the court speaking on the precise point under consideration said:

“The criticism upon the acknowledgment is, that it does not show that the clerk, Grumert, acknowledged that the deed was 'executed by him. It seems to us that the objection is hypercritical. The officer before whom the acknowledgment was taken certifies that the clerk of the board (naming him) came personally before him, ‘to me known to be the person so described in the foregoing instrument, and acknowledged that the same was executed freely and voluntarily, for the uses and purposes therein mentioned.’ ”

The language plainly implies that the clerk who made the acknowledgment himself executed the deed. The deed seems to be entirely free from any defect.

Our attention is called to the fact that the record of the attesting clause of the deed varies from the original, in that in the former the words “seal of said county of Elorence, at my office in said county of Florence, this 7th day of July, in the year of our Lord one thousand eight hundred and ninety-seven,” are substituted for the words “the seal of the said county board of supervisors at Florence in said county of Florence this 7th day of July, A. D. 1897.” From what has been said there is no escaping the conclusion that the record, though not a literal, is a substantial copy of the original. If the language of the deed was that of the record, the instrument would be valid. The defect in the record is not such as in any reasonable probability to mislead any one of ordinary prudence and intelligence, and since such a record to be valid need not be a literal copy of the original, the variance in question is immaterial. The same will apply to the variance, indicated in the statement, between the record of the acknowledgment and the original. One is equivalent to the other. The variance is one of the class commonly spoken of as mere blunders, not affecting in the slightest degree the purposes of the record, because not such as to mislead, and so are inconsequential. St. Croix L. & L. Co. v. Ritchie, 73 Wis. 409, 41 N. W. 345, 1064; Lander v. Bromley, 79 Wis. 372, 48 N. W. 594; Jenny v. Zehnder, 101 Pa. St. 296; Royster v. Lane, 118 N. C. 156, 24 S. E. 796; Fogg v. Holcomb, 64 Iowa, 621, 21 N. W. 111. In the St. Croix L. & L. Co. Case, where a tax deed was involved, this court said that a mistake in the record of a deed, not affecting the identity of the instrument and which would not mislead any person of average intelligence, is to be disregarded as not affecting the validity of the record. In Fogg v. Holcomb, supra, where two lines of the description of the land in the original were omitted from the record, the record was sustained because the identity of the instrument from which it was made was unmistakable, and all the material parts of the instrument were copied with substantial-’accuracy. The true doctrine doubtless is that a record of a deed to be valid must be a substantial copy thereof, and so near a literal copy of the same as to point out to a person of ordinary intelligence upon a reasonably careful inspection the subject matter and substance thereof.

The fact that the record at the time it was offered in evidence showed only a scroll seal, which had been erased — in view of the fact established beyond controversy that the erasure was made after the completion of the Record, — does not affect the validity thereof. It must be considered as it was when made. There being no requirement that the seal impressed upon the deed shall be exactly copied into the record, the scroll seal on the record in connection with the declaration in the attesting clause that the original was sealed properly, is sufficient. That is distinctly ruled in Hiles v. Atlee, 90 Wis. 72, 62 N. W. 940, in this court.

The foregoing is in harmony with Lander v. Bromley, supra, relied upon by counsel for respondent. It was there held that a substantial record of a tax deed is sufficient for all purposes.

The foregoing covers all questions in regard to the G-aiser tax deed and the record thereof which seem to he worthy ■of notice. There was no fatal defect in the deed or in the record thereof. The statute of limitations had fully run in favor of the instrument before the commencement of this action. Therefore, the title of the appellant was perfect by virtue thereof, and judgment should have been rendered accordingly.

By the Gourt. — The judgment is reversed, and the cause remanded with directions to render judgment in accordance with this opinion.