Wambole v. Foote

2 Dakota 1 | Supreme Court Of The Territory Of Dakota | 1878

Shannon, C. J.

The important question before us is, are the conclusions drawn by the court below legally deducible from'the findings of fact ? The latter cover all the issues, and from the former we are to inquire in the first place whether the power of attorney -from the plaintiff to J. B. S. Todd, of date May 14th, 1862, and the deed made by him under said power, of date January 24th, 1866, are null and void.

It is to be observed that there is nothing appearing on the face of either of these instruments to disclose their alleged invalidity-in regard to the disability of minority or infancy; and hence, in ^ equity, springs the jurisdiction. The facts disclosed by the findings are, that at the time of the execution and delivery of the power the plaintiff was only twelve years and about six months old; and at the date of the'deed she had- only attained the age of sixteen years and about'two'months.

At common law the contracts of infants were divided into three classes, namely: First, those which were absolutely void; second, those which were only voidable; and third, those which were binding. In the distinction made in the books between void and voidable acts of an infant, a power of attorney is generally selected by way of example as an act absolutely void.

In Zouch v. Parsons, 8 Burr, 1804, Lord Mansfield and the court approved the law as laid down by Perkins, that “ all such gifts, grants or deeds made by infants, which do not take 'effect by delivery of his hand, are void; but all gifts, grants or deeds made by infants, by matter of deed or in writing, which dfi take effect by delivery of his hand, are voidable by himself, by his heirs, and by those who have his estate.” And in Mansfield’s view the words “ which do take effect ” are an essential part of the definition, and exclude letters of attorney, or deeds which delegate a mere power, and convey no interest. So that, according to his opinion, there is no difference between a feoffment and any deeds which convey an interest. In each case, if the infant makes a feoffment or delivers a deed in person, it takes effect by such delivery of his hand, and is voidable only. But if either be done by a letter of attorney from the infant, it is void, for it does not take effect by a delivery of his hand.

Chancellor Kent, in his Commentaries, (vol. 2, p. 286,) states that the doctrine of Zouch v. Parsons has, in this country, been recognized and adopted as law; and in Bingham on Infancy, 34, such warrant of attorney is ranked as void. (See Conro v. Birdsall, 1 John. Cas., 127; also Brightly’s Eq. Jur., § 75.)

In Story on Contracts, § 59, it is stated, that an exception, as to voidable contracts, obtains in the case of a power of attorney executed by an infant, which is treated as utterly void. That writer says that “'the point, however, is settled; and an authority so delegated, even though it enure to the benefit of the infant, is a nullity, and cannot be rendered valid by a subsequent ratification.” It is true that, with his usual care, this author notices a few exceptional cases plainly beneficial to the infant; yet in 1 Parsons on Contracts, 243, it is said that an infant’s warrant of attorney, “ authorizing a conveyance of his land, * * * or his appointment of an agent of any kind,” has been declared to be absolutely void.

In Bool v. Mix, 17 Wend. R., 119, the rule was admitted to be that all deeds and instruments under seal, executed by an infant, were voidable only, with the single exception of those which delegate a naked authority. And further, that an infant cannot give a delegation of power. (See Bennett v. Davis, 6 Cow., 393; Roof v. Stafford, 7 Cow., 180; Knox v. Flack, 22 Pa. St. R., 337; Lawrence v. McArter, 10 Ohio, 37; Cole v. Pennoyer, 14 Ills., 158)

Against the current of the common law it cannot, therefore, be contended that an act done by another for an infant, which act must necessarily be done by letter of attorney, under seal, is not absolutely void. This particular disability, after all, works no hardship, but rather* a benefit; for the disposition of the infant’s property is perhaps better secured through a guardian, under the control of a court.

This rule of the common law governed in this Territory until January 12th, I860, when, as declaratory of it and affirming it, the Legislative Assembly enacted that “ a minor cannot give a delegation of power,” (Civil Code of 1866, § 15,) and when the Civil Code came up for revision in 1877 this section was re-enacted; and it remains the law.

Upon recurring to the findings it will be noticed that the alleged power remained unexecuted until January 24th, 1866, the date of the conveyance, a period of three years and eight months. At that time the delegation of power was void, not merely at common law, but also by force of the statute.

■ In this connection another point should not be overlooked. Laying entirely aside all question of minority, there is, it seems, another ground upon which the deed is inoperative. Between the dates of the two instruments the state and condition of the plaintiff became changed, for on the twenty-seventh day of February, 1865,(as the ninth finding shows) she was married to Charles Wambole, and has ever since continued his wife. That the defendant, as well as the holder of the power, had actual notice of the marriage, is quite evident from the conveyance itself, which purports to be made by Elizabeth Wambole, formerly Arconge, by her attorney in fact; and to which the latter appends her name as “ Elizabeth Wambole, formerly Elizabeth Arconge, by J. B. S. Todd, her attorneyand moreover, it is acknowledged by the attorney for her as such married woman. These being the facts, did they amount to a revocation of the power? The instrument-of May 14th, 1862, contains no words of conveyance or of assignment. It constitutes no part of a security to the donee. It is a mere power to sell and convey. It is not, therefore, a power coupled with .an interest, to constitute which there' must be an interest in the thing itself, or in the subject of the agency, and not merely in the execution of the power.

It was formerly held that if a feme sole created an attorney, and then married, it would revoke such power; and this, even, with regard to a warrant of attorney to confess judgment. (2 Kent's Com., 645 ; Judson v. Sierra, 22 Texas, 365, 371.) But this broad doctrine has been modified, and in Ennie v. Clark, 2 Pa. St. R., 234, it is held that if a feme sole give a warrant of attorney to confess judgment on her bond, and afterward marry, the warrant is not revoked, and this because in such case there is a power coupled with an interest in the obligee. But, in the same - decision, it is conceded that, “ if it be a power uncoupled with an interest — as, for example, to collect debts — a subsequent marriage, with notice, will amount to a revocation.”

Proceeding, however, from common to statutory law, it will be seen that, by section 486 of the Civil Code of January 12th, 1866, (herein subsequently quoted,) a married woman is declared incapable of contracting by any grant of her real property so as to pass her estate therein, unless in the particular mode prescribed, to-wit: by personal acknowledgment before a proper officer, on a private examination, apart from her husband. But, as has already been seen, the acknowledgment of the deed of January 24th, 1866, was made by the attorney, and she being then incapable of thus contracting, the power of the agent was terminated by force of section 1263 of the same Code. And yet further, up to the date of the deed, the estate was certainly still vested in her, and it has been held that the private examination required by the statute is in its nature personal, and that it is a matter in which she cannot be represented by another. (Mott v. Smith, 16 Cal., 533; Hollady v. Daily, 19 Wall., 609.)

Consequently, in no possible view of the case can it be contended that the deed of January 24th, 1866, conveyed any estate or interest to the defendant; and the district court was, therefore, correct in its conclusions of law that the two instruments named are null and void.

The next inquiry is, whether the two deeds from the plaintiff to the defendant, of date May-7th, 1866, passed any estate from her to the defendant.

As between the parties to this action this query hinges upon the legality of her acknowledgments to the two deeds, as contained in the certificates of the notary public, which are fully set. out in the*’ findings. The law in force at the time must form the test.

At common law a wife was disabled from aliening her lands by deed, either by herself or by uniting with her husband. Her deed being void, the only mode in which she had power to pass her freehold estate was by levying a fine or suffering a common recovery. In a conveyance by fine, or acknowledgment of a feoffment of record, the wife was privately examined by the court whether she did it willingly and freely, or by compulsion of her husband. In this way was removed the general presumption of the law that she was acting under the coercion of her husband,' (2 Bl. Com, 351; Bool v. Mix, 17 Wend., 128; 3 Wash. R. Prop., 227,) and the record of the fine was evidence of the private examination of the married woman, and could not be contradicted. (Bac. Abr. Fines and Recov., C.) And so the modern certificate cannot be legally proved by parol. In the place of this common law mode, and as a sort of substitute for it, the Legislature of New York, as early as 1771, enacted that no .estate of a feme covert should thereafter pass by her 'déed without a previous acknowledgment made by her; apart'from her husband,- and on a private examination, “ that she executed the same freely, without any fear or compulsion of her husband,” and a certificate thereof purporting that " she had been so privately examined, indorsed on the deed and signed by the officer before whom the acknowledgment was made. (See Act of 1771 in 3 R. S. App., 22; 2 Kent’s Com., 150; Jackson v. Gilchrist, 15 John., 109; Bool v. Mix, supra.) The same provision was re-enacted in that state in 1788, and again in 1801, and again in 1813. (2 Greenl., 99, § 3; 3 R. L. App., 26, 30; 1 R. L., 369.)

In each of the acts referred to the certificate of the officer that the acknowledgment of the execution of the conveyance was made upon such private examination of the wife, apart from her husband, was made essential to the operation of the deed. Without this certificate no estate of a feme covert could pass by deed. The law required not only the private examination, but it also required the certificate of the fact to be made at the time, and as a part of the transaction; and the fact could not, under these statutes, be made to appear except by the certificate. The certificate took the place of the record of the examination in open court, and performed the same office; and in Elliott v. Peirsol, 1 Peters, 328, it was held that the private examination and acknowledgment of her deed cannot be proved by parol, but it must appear by the certificate or record made at the time. In the same case it was said that the capacity of the feme covert to convey her estate by deed, being the creature of statute law, to make her deed effectual “ the forms and solemnities prescribed by the statutes must be pursued.” But as to New York, in the revision of the laws there in 1830 the same provision as above was substantially re-enacted. The language employed is slightly different, and the provision in relation to a certificate is placed in a section by itself. It is provided: First, that no estate of a married woman shall pass by any conveyance not acknowledged as required by the act; and, second, that the officer who shall take such acknowledgment shall indorse a certificate thereof, signed by himself, on the conveyance, and in such certificate shall set forth the matters thereinbefore required to be done. (1 R. S., 758, §§ 10, 15.)

In Albany Fire Ins. Co. v. Bay, 4 Comstock, 14, Jewett, J., in referring to the act of 1771, said that “this act, prescribing the form in which the deed of a feme covert should be acknowledged in order to pass her real estate., has been substantially continued in respect to married women residing in this state, in the successive revisions of the laws.”

The above is a synopsis of. the legislation of New York, (embracing 1 R. S., 758,) derived from the opinion of Allen, J., in Elwood v. Klock, 13 Barb., 50, and from the other authorities named. And the importance of such review becomes apparent when it is known that our Civil Code is in great part' derived, at least in the respect under consideration, from the Revised Statutes of that state in force at the time of the codification.

The Civil Code of this Territory, adopted January 12th, 1866, was originally the product of the labors of eminent jurists of that state, whose purpose was to give the law as it then existed there, and to specify such alterations and amendments therein as they should deem proper. Accordingly section 486 of our Code was taken from 1 R. S., 753, § 10, modified by making the requirement apply to grants executed and acknowledgments taken within the state or territory, instead of to acknowledgments wherever taken,- of a married woman residing in the state or territory. ' It is as follows : “ No estate in the real property of a married woman passes by any grant purporting to be executed or acknowledged by her within this Territory, unless the -grant is acknowledged by her in the manner prescribed by section 521.”

Section 521 was also taken from 1 R. S., 758, § 10, and is as follows: “Sec. 521. The acknowledgment of a married woman to an instrument, purporting to be executed by her, cannot be taken within this Territory, unless she acknowledges to the officer, on a private examination apart from her husband, that she executed such instrument freely, and without any compulsion or fear of her husband.”

Section 526 was taken from 1 R. S., 759, § 15, and 'is as follows: “ Sec. 526. Ah officer taking the acknowledgment or proof of any instrument must indorse upon the instrument a certificate thereof, signed by himself personally, setting forth all the matters required by law to be done or known by him, or proved before him, on the proceeding, together with the names of all the witnesses examined before him, their places of residence, respectively, and the substance of their evidence.”

It will be noticed that this section embraces both the proof and the acknowledgment of instruments; but, as in the case before us, there is no question as to the former, but solely as to the latter, by eliminating what is foreign to the point the section will read thus: “ An- officer taking the acknowledgment of any instrument must indorse upon the instrument a certificate thereof, signed by himself personally, setting forth all the matters required by law to be done or known by him.” That is to say, the certificate must contain all the matters prescribed in section 521. This is absolutely essential, for what the law requires to be done and appear of record can only be done and made to appear by the record itself, or an exemplification of the record. By the above provisions of the law it is not the fact of privy examination alone, but the recording or certifying of the fact, which makes the deed effectual to pass the estate of the married woman. B$ section 486 it is expressly declared that no estate passes unless the acknowledgment is in the manner set out in section 521; and the record made by the officer must show, so far as the wife is concerned, that she Acknowledged, on a private «-examination, apart from her husband, that she executed the instrument freely, and without any compulsion or fear of her husband. How is the record in this case ? It is as- follows, so far as her private examination is involved, to-wit: “ And the said Elizabeth Arconge Wambole, of the said county and territory, being examined separate and apart from her husband, acknowledged that she executed the said instrument for the express purpose of relinquishing all right of dower in the premises above conveyed.” Now, as the great object in view, both at the common law and by statute, is to ascertain whether the wife acted under fear or compulsion, how can it be pretended that the above is an adequate compliance with the law ? There is a total absence of the requisites which, when the wife is under such private' examination, the officer is bound to ascertain, and to record, and .to certify. In Meriam v. Harsen, 2 Barb. Ch. R., 232, the contention was in regard to the absence of the word “freely;” although the wife acknowledged in that case that “ she executed the same without any fear' threat or compulsion of her husband.” After a struggle that record was held sufficient, because, from the words set out, there arose an implication that the act was done “ freely.”

In Gillett v. Stanley, 1 Hill, 121, Judge Bronson said: “There was no such acknowledgment as the statute required for passing the estate of the feme covert;” and then adds: “ Without an acknowledgment, on. a .private examination, etc., the deed was a mere nullity.”

The chancellor said, in Knowles v. McCamly, 10 Paige, 346, that “ where the legal estate is in the wife, except in the case of a nonresident of the state, her deed or contract, conveying or agreeing to convey such estate, if not acknowledged according to the statute, is a mere nullity in equity, as well as at law.”

In Martin v. Dwelly, 6 Wend., 12, Sutherland, J., referring to 1 R. L., 369, on this subject, said, 'that “ it gives to her deed, when duly acknowledged, the same power and effect as a fine; but, if not acknowledged according to the direction of the statute, it declares that no estate shall pass by it; ii leaves it as it would have stood at the common law, if the statute had never been passed, absolutely void and inoperative.” In Bool v. Mix, supra, Bronson, J., again stated that “tlie acknowledgment of a married woman shall not be taken, except in a particular manner, nor shalMier estate pass by a conveyance not so acknowledged.”

Referring to 1 R. S., 758, §§ 10, 15, Mr. Justice Allen (in Elwood v. Klock, supra) says: “ The statute still' looks to the certifícate as containing the evidence that its requirements have been complied with, to enable the deed to become operative. The execution of a deed by one not under disabilities may be operative to pass an estate without an acknowledgment, and the -execution may be proved by any competent evidence. Not so of a deed of a feme covert; no estate passes except the conveyance is acknowledged as required by law. The disabilities of the wife are only removed by a strict compliance with the statute. As no deed can be recorded except upon a proper certifícate of acknowledgment,” (see section 509 of Civil Code of this Territory,) “ a deed of a feme covert cannot take effect for any purpose except upon a like certificate.”

'It must be added that in order to comprehend the full meaning of section 526, requiring the certificate to set forth “ all the matters required by law to be done or known by him,” (the officer,) “ or proved before him,” it is necessary that section 520 be read in connection, as also the other sections of Article III relating to “ proof and acknowledgment of instruments.”

In thus tracing the origin and in giving the contemporaneous exposition of these statutes incorporated into our Code, this opinion 'has become somewhat lengthy. The cause of this, however, is that a thorough and complete understanding of them is essential in this, the first case in this Territory calling for their interpretation. It is not that there is any ambiguity in the language, but that a clearer light is shed from the history of a statute, and from opinions in respect to it entertained by jurists at the time of its passage. A contemporaneous is generally the best construction of a statute.

In California the examination of a married woman must be separate, and this can only be shown by the certificate of the officer taking the acknowledgment, which must conform to the statutory requirements, else the deed is inoperative and void. (Bouts v. Zachariah, 11 Cal., 281-291; Morrison v. Wilson, 13 Cal., 498; Landers v. Bolton, 26 Cal., 408; Ewald v. Corbett, 32 Cal., 493; McLeran v. Benton, 43 Cal., 467. See also the following cases: Hepburn v. Dubois, 12 Peters, 345; Meegan v. Boyle, 19 How., 130; Glidden v. Struple, 52 Pa. St. R.; 400; Heaton v. Eryberger, 38 Iowa, 185; Willis v. Gattman, 53 Miss., 721; Lindley v. Smith, 46 Ills., 523; Lane v. Dolick, 6 McLean, 200.)

It was contended for the appellant, that even if these deeds were not legally acknowledged, they amounted to a contract on her part to convey; but this precise question was before the court in the case of Martin v. Dwelly, 6 Wend. Rep., 13, to-wit: Whether a deed executed jointly with her husband, but not acknowledged pursuant to the statute, was valid-against the feme covert, as an agreement to convey. In that case it was contended that a court of equity would consider it as an agreement to convey, and if it was shown to have been voluntarily made, for a valuable consideration, would compel the wife or her heirs specifically to perform it. This doctrine was, ^ however, repudiated by the court as unsound in principle, and unsupported by any color of authority. But, in the present case, the fourteenth finding discloses the fact that “the plaintiff has never received any consideration for the said conveyances, or either of them, save the promise by said Todd to convey to her some lots in the city of Yankton of equal or greater value, but which lots were not designated by said Todd, nor was there any agreement as to.what or how many lots were to be conveyed.” And the tenth'' finding shows that it was “at the instance of said J..B. S. Todd,” that the plaintiff “ executed and delivered the two deeds to defendant, Obed Footenor were these defective acknowledgments cured by the act of January 6th, 1873. From all which considerations it is manifest that the district court did not err in concluding that, as between the parties to this action, the two deeds from the plaintiff to the defendant, of date May 7th, 1866, passed no estate from her to the defendant.

The third main inquiry relates to the validity of the tax deed executed by the treasurer of the city of Yankton to the defendant, and dated February 19th, 1876. On this subject there are seven findings — from the sixteenth to the twenty-second, inclusive. The city of Yankton assessed the lands in controversy for city taxes, for the year 1873, and levied taxes thereon amounting to four dollars and eighty cents, in the name of the defendant, Foote, and said taxes not having been paid the lands were sold by the city treasurer for such taxes, at the sale’which took place in February, 1874, to Woolley & Ward'; and not having been redeemed from such sale, and^ the defendant having become the owner of the certificate of sale, the tax deed was, on February 19th, 1876, executed and delivered to the defendant.

By the act of the Legislative Assembly of January 8th, 1873, incorporating thg city of Yankton, the mayor and council were authorized by Section 13, “ to levy and collect taxes for general purposes, not exceeding two mills on the dollar in any one year, on all the property within the limits of the city, taxable according to the laws of the Territory, the valuation of -such property to be taken from the assessment roll of Yankton county; and it shall be the duty of the county clerk of said Yankton county to permit the city clerk to make out from the assessment rolls of the county an assessment roll for the city, of all property liable to taxation as above specified.”

They were also empowered by the same act, Section 13, “ to provide for the sale of real estate for the non-payment of taxes due thereon, and for the time and manner of redemption of the same, and conveyance thereof, provided that the owner may redeem the same within two years,” etc.

Accordingly, on tlie 18th day of August, 1873, an ordinance was passed by the mayor and council, entitled “An ordinance relating to the levy and collection of taxes for city purposes,” which was amended on January 27th, 1874, by changing the time of sale from the second Monday of February to the third Monday of that month, of each year, and expressly providing that the sale' shall take place on the third Monday of February of each year. The provisions 'of the ordinance, so far as they relate to this action, and for the purpose of determining it, are set out in the findings.

Section 13 of the ordinance seems to have been framed from section 58 of the general revenue act of 1869, and the notice of sale in the latter must be for three weeks previous to the sale. As to publication, the evident intention was to make the ordinance correspond with the general law in such respect. From all the light before us we cannot construe publication for “ at least once a week for three consecutive weeks preceding the sale ” to mean anything else than publication for three weeks, (or twenty-one days) previous to the day advertised' for the sale. The sale was advertised to take place on the sixteenth day of February, the third Monday.

' As to what the notice of sale shall contain, there is a difference between the statute and the ordinance. The latter declares that the notice must “ contain a notification that all real estate, the taxes oh which are then delinquent and unpaid, will be sold to pay such taxes, and all taxes due thereon from the owner or holder of .such real estate; and it shall specify the time and place of sale, and contain a list of the real estate to be sold, and the amount of city taxes due thereon, and on each lot, part of lot, or parcel of real estate, respectively.” But the twenty-first finding shows that the property was all advertised and sold, including all of three subdivisions as one parcel, and was so advertised and sold as the property of the defendant, Foote, for five dollars and fourteen cents.

By the twentieth finding of fact it is shown that the city treasurer did not make and file with the city clerk such return of sale as is prescribed by section 16 of the ordinance. This section was .evidently framed from section 62 of the general revenue act, but it differs from the latter in essential particulars. The statute referring to the return of sale employs the words “ showing the lands soldthe ordinance goes further, and uses these terms, to-wit: “ showing the lots or parcels of real estate sold, the names of the purchasers, and the sums paid by each for each lot or parcel of real estate respectively,” etc.

It is a principle of law that on the execution of a power the execution must have reference to the power itself, and that a person claiming under the execution takes under the deed, by which the power is created; and it is not by the mere execution and delivery of a deed, but a deed based upon the necessary prerequisite acts by which' it became lawful to sell the land which it conveys, that a title alone can be created in the purchaser. It would at once seem to be requisite to the validity of the city treasurer’s Seed that it should recite the power under which it is made, and it should recite the acts of compliance with the ordinance which preceded the making of the deed.

Considerations like these must have operated in the framing of the ordinance — for, unlike the revenue act of 1869, which, prescribes a form of deed, section 21 of the ordinance, discarding a .form, declares that the conveyance “shall also recite the powers under which the same was made, and show a compliance with all the provisions of^the statute by which the power was created, and with this ordinance,” -

As disclosed by inspection of* the instrument, and by the findings, the court below was correct in concluding that the treasurer’s deed does not contain the recitals required by the ordinance, and does not show a compliance with it.

There is another matter in this connection which must not be omitted. In 1873, when this land was listed and assessed in the name of the defendant, he had upon the record the three deeds named, and thereby notified all the- world that he claimed to be the true owner, and the holder or possesso?thereof. He had thus publicly held the property, asserting ownership, for seven years. Under the system then in force it is presumable that he was thus assessed either by his own act or that of an agent, but at all events he had placed hiníself in the position of one inviting and assuming a share of taxation. In this attitude, if he acted in good faith, he took upon himself at the time, the obligation to pay, and it was his duty to do so.

In Bassett and Wife v. Welch, 22 Wis., 176, it was held that one who is in possession of land claiming title at the time when taxes accrue thereon, which are assessed against him, is bound to pay them, and if he allows the land to be sold, and afterwards takes an assignment of .the certificate, that will be a payment, and a deed taken by him thereon will confer no title as against the true owner. (See also Whitney et al v. Gunderson, 31 Wis., 378.) The lands were listed and assessed in his own name, and he was the holder thereof, and thus claiming, by deeds recorded for seven years, and permitting an assessment in this manner, he should be estopped from denying a then assumed obligation to pay the taxes. .

In the case of Barretts v. Amerein, in 36 Cal. R., 322, it was held that if a person is in possession of land, claiming the same to be his' own, it is his duty to pay the taxés, although he has no paper title and is a trespasser, and that, under such circumstances, he*cannot acquire an outstanding title by neglecting tó pay the taxes, and, allowing the land to be sold for the same, and purchasing at the sale.

In Garwood v. Hastings, 38 Cal., 217, the doctrine is asserted that it is the duty of such person, against "whom the tax is levied, to pay it. (See Kelsey v. Abbott, 13 Cal., 609; Moss v. Shear, 25 id., 38; McMinn v. Whelan, 27 id., 300; Coppinger v. Rice, 33 id., 425; Riley v. Lancaster, 39 id., 357.)

• It may admit of much doubt whether the deed was not invalid on its face for another reason. The amended ordinance, as has been stated, declares that the sale shall take place on the third Mon-Ray of February. But the deed^hows that the sale did not take place on that day, but on a subsequent day, and it contains no recitals explaining the disregard of the day designated by the ordinance, and the selection of a different day. It does not 'recite any offer publicly to sell on the day positively fixed, and is silent as to any lawful adjournment, if any there was. (Williams v. Kirtland, 13 Wall., 309; French v. Edwards, 13 id., 506.)

By the ninth conclusion of law of the District Court (based on the twenty-second finding) the defendant and appellant is at liberty to take from the-clerk the sixty-nine dollars and eight cents paid over to him by the treasurer (the money paid by plaintiff to the treasurer) to redeem said lands from the city taxes. The court below decided that the said treasurer’s deed is inoperative and void, and on review of all the proceedings in relation thereto no error is discovered in such conclusion.

Whether the husband, Charles Wambole, acquired any interest or estate in the lands by virtue of his marriage to the plaintiff in 18'65, and if so, what effect was produced by his joining in the two deeds of May, 1866, are questions which are not in this case, and which must remain undetermined until they properly arise. The judgment herein in no manner or form affects these questions.

• The appeal, in this case, was taken only from the judgment, and the notice contains no mention of the order denying a new trial. It is true that, upon appeal from a judgment, this court has authority to review any intermediate order, ruling or decision involving the merits and. necessarily affecting the judgment, but does this power of itself include any other matters of review than at 'common law?. By the latter rule a new trial was• discretionary ' only in the trial court, and the granting or refusing it was not a subject of exception in error. (Ins. Co. v. Barton, 13 Wallace, 603.) To extend the remedy was the object, it would seem, of that portion of subdivision 2, § 22 of the Code, which specifically provides for an appeal from an order in new trials. It is thus, in and of itself, a subject of appeal. Was it not intended that if a party feels himself aggrieved by such ruling he should say so, and appeal accordingly, in order to a. correction of findings, or verdicts, alleged to be unsustained by the evidence ? In other words, will this court review the evidence in a case apart from the findings, unless in the mode expressly prescribed, to-wit: by appeal from . the order? (8 Cal., 538; 1 Code, R. N. S., 364.) But, however this may be, and without deciding the point at present, it is sufficient to say that, upon examination, no errors in the findings of fact, material to the issues, are discovered.

As between the parties to this action, upon full and careful review of the assignments of error, the judgment or decree of the District Court of Yankton county must be

AFFIRMED.^*

* As to tax deeds, see generally, Williams v. Peyton, 4 Wheat., 78; Thatcher v. Powell, 6 Wheat., 119; Ronkendoaff v. Taylor, 4 Peters, 349; Atvord v. Collin, 20 Pick., 418; Jackson v. Shepard, 7 Cow., 88; Harrington v. Worcester, 6 Allen, 576; Abell v. Cross, 17 Iowa, 176; Conway v. Cable, 37 Ills., 88; Morton v. Reeds, 6 Mo., 64; Ballance v. Forsyth, 13 How., 18; Games v. Stiles, 14 Peters, 322; Pillow v. Roberts, 13 How., 475; Blackw. Tax Titles, 47, and cases cited; Blackw. Tax Titles, 93, 94, 104, 531; Ferris v. Coover, 10 Cal., 589; Kelsey v. Abbott, 13 Cal., 609; Stewart v. McSweeney, 14 Wis , 472; Groesbeck v. Seeley, 13 Mich., 340; Wright v. Dunham, 13 Mich., 414; Atkins v. Kinnan, 20 Wend., 241; Smith v. Hileman, 1 Scamm., 323; Brown v. Veazie, 25 Me., 359; Langton v. Poor, 20 Verm., 13.