Whittlesey v. Hoppenyan

72 Wis. 140 | Wis. | 1888

Lyon, J.

I. The defendant rests his claim of title to the lots In question solely upon his tax deed of September 4, 1869; and in order to sustain such deed he pleaded the several limitations contained in secs. 1188, 1210d, 1210e, 4211, 4212, 4215, R. S., and the several acts amendatory thereof. Such tax deed is void on its face, for the reason that it shows a tax sale of the lots on September 4, 1866, and the deed was executed September 4, 1869. Sprecher v. Wakeley, 11 Wis. 432; Lindsay v. Fay, 25 Wis. 460. The deed could not have been lawfully executed until the expiration of three years after the date of the certificate of sale, and of course that could not bear a date earlier than September 4, 1866. Laws of 1859, ch. 22, secs. 18, 25. The three years did not expire, and no deed on such tax sale could lawfully be issued, before September 5, 1869. The lots were subject to redemption September 4, 1869. Sprecher v. Wakeley, 11 Wis. 432, and note (sec. 11); Lindsay v. Fay, 25 Wis. 460.

Furthermore, the special limitations upon tax deeds, pleaded by the defendant in support of his deed, all com-menee to run from the recording of the tax deed. The tax deed upon which defendant founds his claim of title was never recorded, for it purports to be attested by two witnesses, whereas the attempted record of it shows but one witness. This is not an effectual record of the deed. Hence the limitations contained in secs. 1188, 1210d, and 1210e, R. S., are not available to sustain the defendant’s tax deed.

But the defendant further relies upon the ten years statute of limitation's prescribed by sec. 4211, R. S. Although the deed is void on its face, and was never properly recorded, it is still such an instrument as is contemplated blithe latter section. McMillan v. Wehle, 55 Wis. 685. Hence, if the defendant was in the continual occupation and possession of the lots in question, or of some part thereof, for ten jmars, claiming title under his tax deed, he has a good title to the lots by adverse possession. The proof on this subject is that the defendant took possession'of the lots in. the spring of 1874, built a fence around them, and trimmed out the underbrush. The fence remained in 1876 and 1877, but in 1880 it had disappeared entirely; and there is no proof that the defendant had any further or other possession of the lots until 1884. Yery clearly this is not such a continual occupation of the lots for ten years as will establish the defendant’s title thereto.

We conclude that the defendant has failed to establish title in himself to the lots in controversy.

II. We are now to inquire whether the plaintiff has proved title to the lots, for it is an elementary rule that the plaintiff in ejectment must recover (if at all) upon the strength of his own title, without regard to the weakness of that of his adversary.

1. The quitclaim deed executed by Beáser and wife to Eodelinska in 1855 is of no significance, because it does not appear that the grantors had any interest in the particular lots in controversy which they could convey and thereby divest the title of the trustee. True, Beaser was one of the beneficiaries in the trust deed to the county judge, but he could do no act which would prevent the trustee from conveying a valid title to the lots to another beneficiary. We dismiss this conveyance from further consideration.

2. It is claimed the proof fails to show that Asaph Whit-tlesey, of Ashland county, and Asaph Whittlesey, of Bay-field county, are one and the same person. Hence it is argued that the case fails to show that the ancestor of the grantor of the plaintiff was the beneficiary of the same name in the trust deed. We think the testimony negatives this position, and that it was satisfactorily proved on the trial that such ancestor and such beneficiary were one and the same person.

3. We do not attach any importance to the tax deed of 1866 to Asapli Whittlesey.

4. The next question is whether the county judge of Ash-land county became, by ihe division of La Pointe county and the erection of the county of Ashland, the successor of the county judge of La Pointe county in the trust deed, and as such authorized to convey the lots in controversy. We have no doubt whatever that the trust created by the patent to Schuyler Goff, judge of La Pointe county, in trust, etc., was an official trust, pertaining to the office of county judge, and not a personal one, although the name of the judge is inserted in the patent. Iowa Co. v. M. P. R. Co. 24 Wis. 126. No discussion of this proposition is necessary. So the question narrows down to this: Should the conveyance be made by the county judge of Bayfield county, or by the county judge of Ashland county, in which the lots are situated? The statute of the United States, sec. 2387, R. S. of U. S., appoints as the trustee to take a conveyance of the land “ the judge of the county court for the county in which such town is situated,” and the patent runs to Schuyler Goff as judge of La Pointe county, “and as the proper corporate authority, in trust for the several use and benefit of the occupants of the town of Ashland according to their respective interests, under said act of May 23,1844, and to his successors or assigns in trust as aforesaid.” Had Ashland county been organized when the entry was made in 1856, the certificate of such entry would have been issued to the county judge of that county, under the act of 1844. Had notice of the creation' of that county, and that the town-site of Ashland was within its limits, been given to the proper government officers before the patent was issued, we cannot doubt the patent would have been made to the county judge of Ashland county, because the act of 1844 appoints as trustee in such a case “ the judge of the county court for the county in which such town is situated.” After I860, the town-site in question was situated in Ashland county. ¥e perceive no good reason why the mere fact that the patent happened to be made to the judge of La Pointe county should operate to continue that officer as the trustee after the town-site had ceased to be a part of that county. It was the manifest intention of Congress that the trustee should be the judge of the county in which the town-site is situated. Hence we think when the county of Ashland was organized the judge of that county became the trustee of the town-site in question, and is the officer to administer and execute the trust.

5. We are further of the opinion that sufficient appears on the face of the convejmnce by the judge of Ashland county to Asaph Whittlese}7 to show that the same was intended as an execution of the trust. This sufficiently appears by the recital therein that it was made in consideration of the power vested in the grantor by the act of 1856, which prescribed the procedure for executing the same. In the absence of any proof to the contrary, it must be presumed that the proceedings on the part of the trustee, which resulted in the conveyance to Whittlesey of the lots in controversy, were in accordance with the statute.

See note to this case in 39 N. W. Rep. 355.— Rep.

We think the case was correctly decided, and must therefore affirm the judgment of the circuit court.

By the Court.— Judgment affirmed.

See note to this case in 39 N. W. Rep. 376.— Rep.