Wood v. Meyer

36 Wis. 308 | Wis. | 1874

Ryan, C. J.

The tax deed under which the respondent claims, was executed in 1861, on a sale made by the treasurer of Manitowoc county, in which the land lies, June 9, 1857. The time of sale for nonpayment of taxes was then fixed for the second Tuesday in April, and the next succeeding days. R. S. 1849, ch. 15, sec. 86. It appears, however, that the legislature of 1857 undertook to postpone the time, in that county, for that year, for sixty days. P. & L. Laws of 1857, ch. 14. This act is found in the volume of private laws, without particular date of publication; and it must be held in this case as not having been published before the date of the secretary’s certificate annexed to the volume, July 20, 1857. Berliner v. Waterloo, 14 Wis., 378. The act extending the time had, therefore, not become a law when the sale took place. And thereupon it is contended by the appellant that, on the face of the deed, the sale appears to have taken place at a time not authorized by law. We cannot so hold.

There may be room for speculation that the officers of the county, assuming ch. 14, Laws of 1857, to be a law, postponed the sale. But, in the absence of all proof, we are not at liberty to act on such an inference. If the fact be so, it should have been made to appear.

To hold the deed void on the ground alleged, we must find that the day of sale was, ex necessitate legis, a day on which the sale could not properly take place. This we cannot do. Under the statutes, the sale should have begun on the second Tuesday of April, and, if unfinished on that day, have been continued on the next succeeding days, till completed. But, so that the sale began on the first day named, and was continued from day to day on the succeeding days, the statute does not require that it should have been continued for any given time on each day. It is the habit, in some counties, to protract the sale by disposing of a single parcel or so on each day. This is not forbidden, and is a compliance with the statute. And we cannot say, judicially, that the sale in question may not have legally continued from the second Tuesday in April to the 9th day of June. The dates furnish no necessary presumption of an illegal postponement of the sale. On the contrary, the effect given by statute to the tax deed applies to the proceeding the maxim, if not otherwise applicable, omnia prcesumuntur rite acta.

We see no reason for questioning the findings of the court below, that the land was unoccupied, and that the respondent paid taxes on it, for five years after the record of his deed. And this made his title and right of possession absolute. Gunnison v. Hoehne, 18 Wis., 268; Lawrence v. Kenney, 32 id., 281.

The appellant claimed under a tax deed executed in 1870, on a sale made in 1867. He did not offer the original deed, but the record of it. It appeared that the deed is witnessed by one witness only. We know of no rule which distinguishes a tax deed from any other conveyance, under sec. 8, ch. 86, R. S. And the form of tax deed given by sec. 50, ch. 22; Laws of 1859, plainly contemplates two witnesses.

So executed, this deed was very manifestly not entitled to record. And the record of it was not admissible in evidence. These are not open questions in this court. Ely v. Wilcox, 20 Wis., 523; Fallass v. Pierce, 30 id., 443; Gilbert v. Jess, 31 id., 110. The record was therefore properly excluded. And no question arises in this case.on the validity of the deed itself.

By the Court. — The judgment of the court below is affirmed.