Allen v. Allen

• Decision Date: 19 May 1902
• Citation: 114 Wis. 615,91 N.W. 218
• Parties: ALLEN ET AL. v. ALLEN ET AL.
• Court: Wisconsin Supreme Court

114 Wis. 615

91 N.W. 218

ALLEN ET AL.

v.ALLEN ET AL.

Supreme Court of Wisconsin.

May 19, 1902.

Appeal from circuit court, Vernon county; O. B. Wyman, Judge.

Action by Whit Allen and others against Charles W. Allen and others. From a judgment for defendants, plaintiffs appeal. Reversed.

This is an action in equity to set aside a tax title upon 80 acres of land upon the ground of various irregularities in the tax proceedings, and upon the further ground that the relations of the parties were such that the purchase of the tax title by the defendant C. W. Allen constituted in law a payment of the tax. The plaintiffs are five in number, and are children and heirs at law of one Thomas W. Allen, who died intestate, March 1, 1880, seised of the land in question, and whose estate has never been administered. The defendants Charles W. and Adelbert Allen are the remaining children and heirs at law of Thomas W. Allen, and the defendants Maria Mixner and Louisa Wernick are subsequent mortgagees of the land. The action was tried by the court, and the facts were not seriously in dispute, and were substantially as follows: After the death of Thomas W. Allen, in 1880, his widow, Susan Allen, and all of the children, continued to occupy the land until the spring of 1892, when all of the children except the plaintiff Whit and the defendant Adelbert left home, and thereafter did not live upon the premises. The widow, with the plaintiff Whit and the defendant Adelbert, however, continued to occupy the premises as actual tenants during the season of 1892, using them for agricultural purposes, under an arrangement to share the products equally. The taxes on the land for the year 1892 were not paid, and in the spring of 1893 the land was sold therefor to one Albert Field. The land was assessed upon the tax roll in the name of the widow, Susan Allen. On the 15th of November, 1898, Albert Field received a tax deed of the lands upon his certificate, which deed was recorded on the same day, and on the 22d of November, 1898, he deeded the premises to the defendant Charles W. Allen. Upon the same day the widow and the defendant Adelbert made a quitclaim deed of the same premises to the said Charles W. Allen, who immediately, and on the same day, conveyed the south half thereof to the defendant Adelbert. On the same day, Charles mortgaged the north half, and Adelbert mortgaged the south half, thereof, to the defendant Maria Mixner, and upon the 1st day of May, 1899, Adelbert made another mortgage upon the south half to the defendant Louisa Wernick. The defendants Charles and Adelbert claim title to said lands under said tax deeds, exclusive of the other heirs. The alleged irregularities in the tax proceedings are fully stated in the opinion. The court held that the tax deed was valid, and that Charles W. Allen acquired a good title to said lands by the deed from Field, whereupon the court dismissed the complaint, and the plaintiffs appeal.

Bardeen, J., dissenting.

Butt & Butt, for appellants.

Graves & Mahoney, for respondents.

WINSLOW, J. (after stating the facts).

The validity of the tax deed secured by Field is attacked on several grounds, which will be briefly considered in their order.

1. The sale took place May 16, 1893; the last publication of the delinquent list and notice of sale was made May 10th; the delinquent list and notice was duly published the required number of times, but no affidavit of publication was filed until May 20th, being four days after the sale, and ten days after the last publication. The statute (section 1132, Rev. St. 1898) provides that the printer's affidavit showing the proper publication of the list and notice shall be transmitted to the county treasurer immediately after the last publication, and further that, if the same be not transmitted within six days, the printer shall not be paid for the publication. It is argued that this requirement is mandatory and jurisdictional, and that failure to comply therewith is fatal. The fact of publication for the required time is of course jurisdictional, and it is true also that the affidavit of publication required by the statute is the exclusive proof of such publication, without the filing of which the sale will be held invalid. Iverslie v. Spaulding, 32 Wis. 394;Hebard v. Ashland Co., 55 Wis. 148, 12 N. W. 437. It has not been held, however, that if the affidavit be not filed within the six days, but be actually filed a few days thereafter, the sale is void. The penalty attached to the six-day requirement is a clear indication that its main object was to compel obedience on the part of the printer. So far as notice to the parties is concerned, every substantial right is as well conserved by the filing of the affidavit ten days after the last publication as by the filing within six days thereafter, providing it be thereafter duly deposited with the county clerk, as was the case here; and, while the rule of strict compliance with all statutory provisions regulating tax sales is well understood, we are not inclined to hold that the variance here shown invalidates the sale.

2. It is argued that the affidavits of posting the delinquent list and notice of sale were insufficient. The statute requires (section 1130, Rev. St. 1898) that the treasurer shall, at least four weeks before the day of sale, cause to be posted up “copies of such statement and notice in at least four public places in said county one of which copies shall be posted up in some conspicuous place in his office”; and also requires (section 1132) that an affidavit or affidavits showing such posting shall be made and preserved by him and thereafter deposited with the county clerk (section 1141). There were several affidavits of posting duly filed. One affidavit stated that one of the notices was posted up “at the inside door of the treasurer's office,” April 17, 1893; three other affidavits showed, respectively, that the notice was, on the 17th day of April, posted up “at the post office in the village of Hillsboro in said county,” “at the post office on the outside of the building in the village of Westboro in said county,” and “at the post office building in the village of Coon Valley in said county.” The claim is that these affidavits do not satisfy the requirements of the statute, and the case of Hilgers v. Quinney, 51 Wis. 62, 8 N. W. 17, is relied on in support of the contention. In that case it was held that an affidavit which stated that the notices were posted up at four public places in the village of Chilton in said county,--“one at the Chilton House, one at the drug store of William Mahoney, one at the Washington House, and one at the office of the county treasurer,”--was insufficient, because: (1) Four public places in the village of Chilton were not necessarily four public places, so far as the county was concerned; (2) because “at” is not synonymous with “in”: and (3) because it did not appear that the posting in the treasurer's office was in a “conspicuous place.” It must be conceded that the decision was an extremely strict one, and we certainly do not feel that it should be extended to a case not squarely within its lines. This court has held (Hart v. Smith, 44 Wis. 213) that it will be presumed that post offices in cities and villages are public places, and that posting therein constitutes posting in public places, though the affidavit does not state that they are public places. There can be no doubt, therefore, that the affidavits in the present case show posting “at” three public places in the county. Should the “inside door” of the county treasurer's office be presumed to be a “conspicuous place” in such office? We think it should. The words should be given their natural meaning, and they naturally indicate an inner entrance door into the treasurer's office, and hence, necessarily, a conspicuous place in the office. There is only left to be considered the question whether the use of the word “at” instead of “in” is fatal. Notwithstanding what was said on this subject in the Hilgers Case, we do not feel that we ought to hold that this variance alone is fatal. The word “post,” when used in the present connection, means “to attach to a post, a wall, or other usual place of affixing public notices” (Webst. Int. Dict.); “to bring to the notice or attention of the public by affixing to a post, or putting up in some public place” (Standard Dict.). Giving the word this meaning, it seems certain that posting “at” a public place is substantially the equivalent of posting “in” a public place, and we therefore hold that the affidavits of posting in the present case were sufficient.

3. The statute requires (section 1141, Rev. St. 1898) that the county treasurer shall, immediately after the tax sale, deposit in the office of the county clerk, with all affidavits, notices, and papers relative to the sale, “a statement containing a particular description of each tract or parcel thereof of land so sold by him, specifying the name of the person to whom sold, the amount for which the same was sold, and the name of the owner, if known,” and that the treasurer and clerk shall each record such statement in their respective offices. In the present case the court found that the treasurer did not make or file this statement, but that a list of said lands so sold was kept in the county clerk's office, contained in a book called the “sales book,” but not signed by the treasurer. This finding was based simply upon the evidence of the county clerk, who became such in 1899, that he had found no list made by the treasurer in 1893 in his office, though he had made search therefor, but had found the sales book containing the list of the lands sold by the county treasurer in 1893. The sales book is the record referred to in section 1141; it should be the recorded copy of the original list filed by the county treasurer under that section, and can only be legitimately made from that original;...