Stewart v. McSweeney

14 Wis. 468 | Wis. | 1861

By the Court,

Oole, J.

It is clear from the evidence in this case that the respondent, on the trial in the court below, attempted to establish his right to recover the premises in dispute, upon two grounds: 1st, upon the strength of his title derived from Peter B. Grignon, under the conveyance executed by Grignon to his grantor, Wilson E. Stewart, dated February 27th, 1856; and 2d, under and by virtue of the tax deed executed to hiin, and recorded November 3d, If his right to recover rested alone upon the title derived from the conveyance first named, we should feel constrained to reverse the judgment, because we cannot say that he was a bona fide purchaser without notice. For the testimony very clearly and satisfactorily shows that the appellant was in possession of the premises at the time that deed was executed, and this possession was sufficient notice to put the respondent upon inquiry as to the possessor’s title. Cooney testified that the appellant purchased the premises in the fall of 1855, and that he went to chopping thereon in the winter of 1856, and has since remained in possession; while Coady swears that the appellant went into possession on the 8th of October, 1855, and that he has remained in possession ever since. This evidence is uncontradieted, and establishes beyond doubt the fact that the appellant was in possession of the premises when Grignon conveyed to Wilson F. Stewart, and also when the latter conveyed the property to the respondent. So that although the respondent was not chargeablé with constructive notice of the deed executed by Peter B. to Alexander Grignon in June, 1836, because it was not recorded in the county where the lands were situated, yet the possession of the appellant was sufficient to put him upon inquiry, and to enable him to find out by the exercise of ordinary diligence, upon what right or title this possession was founded.

It was also insisted that the conveyances above named were void, because at the time they were executed the lands were in the actual possession of the appellant claiming under an adverse title. But this objection is clearly untenable, for the reason that in 1856, section 7, chapter 59, R S., 1849, was in force, which changed the rule of the common law upon this subject. But still, for the reasons already stated, we should hold that the respondent ought not to recover upon the strength of his title derived from Grignon; and yet upon the other ground, namely, the tax deed offered in evidence, we are unable to see how his right could have been successfully resisted. This tax deed has not been incorporated into the bill of exceptions, and we therefore have not the advantage of an inspection of the instrument.' But we must assume, nothing appearing to the contrary, that the deed was executed in strict conformity to law. In that case we suppose that it vested the title to the premises in the respondent. But it is said, before the respondent could avail himself of the benefit of the tax deed, it was incumbent upon him to show that the deed was regularly obtained — in other words, that all the acts of the public authorities in listing the lands, assessing the tax, advertising and selling the land for the delinquent tax, and giving the deed, were in strict conformity to law. This would undoubtedly be necessary if our statutes did not make the tax deed itself pri-ma facie evidence of the regularity of all these proceedings, and devolve upon the party attacking the deed the duty of showing wherein it is invalid. The doctrine has been established by several cases decided in this court, and must be considered as the settled law of the state.

It was further objected that our statutes make the tax deed prima facie evidence of all the proceedings only from the valuation of the land by the assessor up to the execution of the deed, but that still it is necessary to prove the appraisement or valuation by the assessor. The word “from,” when used in statutes, is construed either inclusively or exclusively, according to the context or subject matter ; and we have no doubt that our legislature intended using it in this place in the former sense, and thus make the deed prima facie evidence of the regularity of the valuation of the land by the assessor, as well as of the subsequent proceedings. Ve certainly can see no reason why the legislature should make a distinction between the act of appraising the land and any other act performed by the official authorities, and we do not think they intended doing so.

The affidavit of the publication of the notice of the sale of lands for taxes of 1855, was objected to as being insufficient ; but the statute provides that such affidavit may be “ made by some person to whom the fact of publication shall be known.” Sec. 88, chap. 15, R. S., 1849. We therefore do not think this objection well taken.

This disposes of all the points made by the counsel the appellant. for

The judgment of the circuit court must be affirmed.