73 Wis. 409 | Wis. | 1889
The plaintiff company never having had the actual possession of the land upon which the logs in controversy were cut by the defendant, it became essential to its right of action to show, by proof of other facts, that it was entitled to the possession of the logs. 'The plaintiff attempted to show this by proof that it was the owne^ in fee of the land and hence was in constructive possession
Was there an effectual recording of the tax deed? Certainly there was, unless the omission of the word “is” in copying the deed upon the record, or the omission of the description of the land from the entries of the deed for record in the general index, invalidates the record. In all other respects the record is faultless.
1. We are not aware of any rule of law which invalidates a registry because of a mere clerical error in transcribing an instrument, not affecting the sense or obscuring its meaning. Such a rule would be intolerable, for it would unsettle titles by making their validity depend upon the absolute accuracy of the registration and record of conveyances,— a degree of perfection to which records made by the average register of deeds have not yet attained.
The formula “as the fact is” occurs twice in the tax deed to Taylor county, as it does in the statutory form of such deeds. R. S. sec. 1178. As first employed, the whole formula is recorded correctly. But in recording it when it is repeated in the deed the word “ is ” was dropped out, and only the words “as the fact” spread upon the record. Giving to the phrase all the importance claimed for it, still we can but think the omission quite inconsequential and harmless. It is a mere ellipsis of a wrord,— not authorized, perhaps, by the strict rules of rhetoric, but yet one which
The case of Hilgers v. Quinney, 51 Wis. 62, establishes no other or different rule. In that case a tax deed was held invalid for substantial defects in the affidavit of the. treasurer of posting notices of the tax sale. We had there 'no question, as we have here, of the effect of a mere clerical omission not affecting the sense of the instrument.
2. The omission to enter a description of the land under the appropriate head in the general index is cured by the transcribing of the deed at length, containing such description, in the proper record. This case is not distinguishable in principle from that of Oconto Co. v. Jerrard, 46 Wis. 317, where it was held that the omission in the general index of the description of the land conveyed by the deed was cured by correctly transcribing the deed at large on the record, and that, when so transcribed, there was a valid registry of the instrument. In that case there was a special reference in the index to the volume and page of such record, while here there is no such special reference. But the index in the present case shows, under the appropriate head,
The learned counsel for the defendant relies upon the cases of Shove v. Larsen, 22 Wis. 142; Hay v. Hill, 24 Wis. 235; and Lombard v. Culbertson, 59 Wis. 437, as holding a different rule. 'Shove v. Larsen decides that a correct description of the land in the index cures a mistake in the descrip•tion in the record at large of the deed. Hay v. Hill is to the effect that where the index, although correct, bears upon its face evidence that it was made after the land affected by it had been convejmd to another, the last grantee was not chargeable with constructive notice, when he took his conveyance, of the deed thus indexed afterwards. Lombard v. Culbertson holds that the transcribing of an instrument at length upon the record, concerning which instrument there are no entries whatever in the index, is not a valid registry thereof. Although language may be found in some of the opinions in these cases which seems to favor the contention of counsel, yet we think it quite obvious that neither of the cases conflicts with the rule of Oconto Co. v. Jerrard, which is here approved and followed. The precise proposition here decided is that the omission from the general index of the description of the land affected by the instrument entered therein for record, is cured by correctly
Nothing appearing to the contrary, the presumption is that the deed was recorded at length on the day it was received for record in the register’s office. Oconto Co. v. Jerrard, supra.
Cases elsewhere, under statutes differing from ours, weré cited by counsel in support of their respective views. These cases give us little aid. We must determine this case (and have done so) in the light of our own statutes and adjudications.
It results from the foregoing views that the tax deed under which the plaintiff claims was duly recorded August 20, 1880. Hence the attempted redemption in 1882 is inoperative, and the three-years statute of limitation had run in favor of such deed long before the logs in question were taken from the land by the defendant. The plaintiff was therefore the owner in fee and in constructive possession of the land when the logs were taken from it, and is entitled to recover such logs in this action.
By the Court.- — The judgment of the circuit court is reversed, and the cause will be remanded with directions to render judgment for the plaintiff in accordance with this opinion.
The following opinion was filed March, 12, 1889:
By the Cottet. As stated in the opinion herein heretofore filed, the action is replevin for saw-logs. It was tried by the court (a jury having been waived), and resulted in a judgment dismissing the complaint. It js not there stated, but the fact is, the order for judgment was made on motion
In the judgment of this court entered January 29, 1889, the circuit court was directed to render judgment for the plaintiff. This mandate is manifestly erroneous. It should be that a new trial be awarded. The clerk is directed to amend the judgment heretofore entered accordingly.
