Woodman v. Clapp, 21 Wis. 355

Woodman v. Clapp

21 Wis. 355 | Wis. | 1867

Cole, J.

It must be admitted that the tax deeds of September 21, 1861, executed by the clerk of the board of supervisors to the county of St. Croix, were informal, because the *363state was not a grantor in those deeds. In the form prescribed by the legislature, in section 50, chap. 22, Laws of 1859, the state and county are grantors. Indeed, the section expressly says: “All deeds of land sold for the non-payment of taxes, hereafter executed, shall be executed by the proper officer, authorized by law to execute the same, in the name of of the state of Wisconsin and of the proper county, or city, or incorporated town or village, as the grantors therein.” In the face of such a clear and specific expression of the intention of the legislature, which has the unquestioned right to prescribe the form of a tax deed, so material a defect as the omission of the state as a grantor cannot be disregarded. Substantially the same objection exists to the tax deeds of December 2d, 1862. In those deeds the state alone was named as grantor, and the county was omitted. It is said there is an incongruity in requiring the county to be named as a grantor in a deed which conveys land to itself; or in other words, in the county being a grantor and grantee in the same deed. But this objection can have no weight in view of the fact that the legislature has seen fit to prescribe that a tax deed given to the county shall be executed in this manner. In this connection we were referred to the Bank of Utica v. Mersereau, 3 Barb. Ch., 528-576, in support of the position that though these tax deeds might be in some respects informal, yet they might be held valid. It appears to us that the reason and principle of that decision can have but little application here, where the legislature has said that the tax deed shall be substantially in the form prescribed. Eor with what propriety can it be claimed that the omission of the state or county as grantor is immaterial, when the statute expressly requires that the deed shall be executed by the proper officer, in the name of the state of Wisconsin and of the proper county, as the grantors therein ? In the Bank of Utica v. Mersereau, where the statute required the comptroller to execute a conveyance of the property sold in the name of the peo-*364pie of the state, the chancellor thought that no one, upon examining the deed of the comptroller with the recitals therein contained, could doubt as to the intention of the comptroller to convey the premises for and on behalf of the people of the state; although the people were not technically described as grantors in such conveyance.

There were some peculiar circumstances surrounding that case which seemed to have great weight in the mind of the chancellor, and which do not exist here; and besides the legislature had not attempted to prescribe a form in which tax deeds should be executed. Eor these reasons we deem the doctrine of that case inapplicable to the defects existing in the tax deeds before us.

The next tax deeds offered by the defendants, and ruled out by the court, were those executed by the clerk, Delos M. White, to the county of St. Croix, bearing date December 21, 1865. My brethren are of the opinion that these deeds were properly excluded from the consideration of the jury, for the reason that no previous order of the county board was shown directing the clerk to execute them. I have had considerable doubt upon the point whether it did not appear in the case that the board ratified the act of the clerk in executing the deed to the county, though no previous order had been made; or, at all events, whether there was not sufficient evidence from which the jury might have inferred an acceptance of the deed qn the part of the board. But not being entirely clear upon the question, I defer to the judgment of my brethren. Chap. 112, Laws of 1863, amended section 11, chap. 22, Laws of 1859, by providing that when lands were bid off for a county, and should not be redeemed, the clerk should not execute a deed to the county of such lands until the county board of supervisors should, by resolution, order the same. Under this provision, therefore, it became necessary, in order to entitle these deeds to be read in evidence, to show some resolution of the *365board directing the clerk to issue them. And we also think, if the previous tax deeds, together with the deed from Denniston to Comstock, dated May 9, 1863, executed in behalf of St. Croix county, had been offered in evidence in connection with the deeds of December 21, 1865, they would have been admissible to show that Comstock was entitled to a good deed from the county; in which case no resolution of the board directing the clerk to execute the deeds of 1865 would have been necessary. But these previous deeds were not offered for this purpose; and therefore it was incumbent on the defendants to show that the deeds of December 21, 1865, were executed by direction of the board. It is said that the plaintiff has no standing in court which enables him to raise the question whether these deeds were executed by the clerk without authority or not; that this is a matter solely between the county and the clerk, with which the plaintiff has nothing to do. But the plaintiff was the original owner of the land, and holds such a relation to the title that he may inquire whether the board authorized the clerk to execute them. The case of St. Louis Public Schools v. Risley, 28 Mo., 415, does not seem to us to be applicable to this case; since there the city was the original owner, and a third party, who had no interest in the matter, attempted to invalidate the deed given by the mayor, on the ground that it was executed without authority. The court said that the objection that the deed was not the act of the corporation, did not come from the city itself, which alone had the right to question the act of its agent in conveying away property belonging to it. If the city was satisfied with the act of the mayor, and was willing the deed should stand, a third party ought not to be permitted to invalidate it. But there is a clear distinction between that case and the one before us, as has just been suggested. Here, the plaintiff being the original owner, might inquire whether his title was gone in consequence of the tax proceedings.

We have already intimated that the deeds of December 21, *3661865, would have been admissible in connection with, the previous deeds, without any order of the board directing their execution; or by themselves, if such order had been shown. It is contended by the counsel for the respondent, however, that the deeds were void upon their face, not being such deeds as the law of 1859 contemplates. The 11th section of chap. 22, Laws of 1859, as amended by chap. 112, Laws of 1863, provides that when any lands are bid off for any county, and not redeemed, the clerk “ shall execute to the county, in his name of office, a deed of release therefor, witnessed and acknowledged in like manner as deeds to individuals, which shall have the same force and effect as conveyances executed by said clerk to individuals for land sold for taxes; provided, that no such deed shall issue until the county board,&c. And in section 12 power is given the county board to authorize the clerk, or any other person, to sell and assign the tax certificates issued for lands bid off for the county, and to sell and convey by deed for the county, any such lands for which a “ deed of release ” has been executed to the same. Upon the strength of these provisions, it is contended that the “ deed of release ” executed by the clerk to the county should be a different instrument from the form of tax deed prescribed in section 50. We deem this position utterly untenable. We have no idea the legislature intended there should be two forms of conveyance of land sold for taxes ; that is, a technical “ deed of release ” where the conveyance was to the county, and a different conveyance where an individual was the grantee. For, in the language of section 50, already quoted, “ all deeds of land sold for non-payment of taxes ” are required to be in the form there given. This language is too plain and unambiguous to admit a doubt as to the intention of the legislature. A form for “ all tax deeds ” is prescribed, as well for those executed to the county as those executed to' individuals.

But another kindred objection is taken, derived chiefly from *367the language used in the 25th section, which is, that where lands sold for taxes are conveyed to the county, the tax deed must be executed under the private seal of the clerk, and also have the seal of the county affixed. Both seals, it is said, are indispensable to a valid deed. This objection must receive the same answer as that given to the previous one. The form of the tax deed given by the- legislature does not require the private seal of the clerk, but expressly says that the corporate seal of the county is to be used. Section 51. The 25th section, so far as relates to the form of the deed, is superseded by the*Subsequent sections of the same law. But it is said, the 25th section and the 50th and 51st took effect uno flatu, and therefore the latter sections cannot - abrogate the former so far as the form of the deed is concerned, but the deed must be executed so as to meet the requirements of the various provisions. It is, however, a well settled rule in the construction of statutes, “ that if the latter part of a statute be repugnant to a former part of it, the latter part shall stand, and, so far as it is repugnant, be a repeal of the former part, because it was last agreed to by the makers of the statute.” Sedgw. on Stat. and Con. Law, 129; Dwarris on Statutes, marg. p. 675. The intention of the legislature is so clearly expressed in section 50, that all tax deeds thereafter executed should be in the form there prescribed, that whatever in the preceding part of the statute is inconsistent with this intention must give way. And it is very apparent that in this view of the effect of section 50, the decision in Eaton v. North, made under section 109, chap. 15, R. S. 1849 (now sec. 25, ch. 22, Laws of 1859), can have no application.

It was not seriously claimed on the argument, that the deed executed by the clerk to the county bearing date May 16th) 1866, was in conformity to the requirements of chap. 32, Laws of 1866 ; and therefore it was rightly excluded from the consideration of the jury.

*368The other questions discussed in this case are disposed of in the opinion of the chief justice in Woodman v. H. S. Clapp, ante, p. 350.

It follows from these remarks that the judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.