Treat v. Lawrence

42 Wis. 330 | Wis. | 1877

EyaN, O. J.

The appellant claims under purchase from the-United States; the respondent under a tax deed. The patent of the United States is dated February 22, 1858; the date of the entry on which the patent issued not appearing in proof. The tax deed under which the respondent claims goes upon a tax sale made on September 14, 1858. The tax must have been assessed and levied in the year 1857. E. S. 1849, ch. 15.

The presumption therefore is, that the title to the land was in the United States when the tax was levied and assessed, and that the land was not then subject to taxation. Const., art. II, sec. 2; Eaton v. North, 20 Wis., 449; Eaton v. Lyman, 33 id., 34.

The tax deed was prima faeie evidence only of the liability of the land to taxation (sec. 2, ch. 503 of 1852); a presumption rebutted, in the absence of proof of the date of entry, by the production of the patent.

There may be, as was argued, a probability in fact that the patent was not issued immediately after tbe entry, and tbat tbe entry may have preceded tbe assessment and levy. But tbe judgments of courts must go upon proof, and not upon unproved probabilities, of legal rights.

By the Cov/rt.— Tbe judgment of tbe court below is reversed, and tbe cause remanded for a new trial.