Brown v. Cohn

• Decision Date: 11 April 1893
• Citation: Brown v. Cohn, 85 Wis. 1, 54 N. W. 1101 (Wis. 1893)
• Parties: BROWN v. COHN ET AL.
• Court: Wisconsin Supreme Court

85 Wis. 1

54 N.W. 1101

BROWN

v.COHN ET AL.

Supreme Court of Wisconsin.

April 11, 1893.

Appeal from circuit court, Oneida county; Charles V. Bardeen, Judge.

Ejectment by E. D. Brown against L. S. Cohn and another. Judgment was entered in favor of plaintiff, and defendants appeal. Reversed.Neal Brown, L. A. Pratt, and H. C. Hetzel, for appellants, cited the following cases: Stebbins v. Merritt, 10 Cush. 27;Pequawkett Bridge v. Mathes, 7 N. H. 230;Tenney v. Lumber Co., 43 N. H. 343;Brinley v. Mann, 2 Cush. 337;St. Philip's Church v. Zion Presbyterian Church, 23 S. C. 297; Case of Sutton's Hospital, 10 Coke, 30b; Thorndike v. Barrett, 2 Greenl. 318;Gashwiler v. Willis, 33 Cal. 11;Hendee v. Pinkerton, 14 Allen, 381;Sherman v. Fitch, 98 Mass. 59;Eureka Co. v. Bailey Co., 11 Wall. 488;City Council v. Moorhead, 2 Rich. Law, 430;Hutchins v. Byrnes, 9 Gray, 367;Koehler v. Iron Co., 2 Black, 717;Society v. Clapp, 18 Barb. 35;Royal Bank of Liverpool v. Grand Junction Railroad & Depot Co., 100 Mass. 444;Warren v. Lynch, 5 Johns. 239; Doe v. Mason, 1 Esp. 53; Olive v. Guin, 2 Sid. 145; Doe v. Edwards, 9 Adol. & E. 554; Jackson v. Pratt, 10 Johns. 381;Mann v. Pentz, 2 Sandf. Ch. 271; Turnpike Co. v. McCullough, 25 Pa. St. 303; Flint v. Clinton Co., 12 N. H. 430;Murphy v. Welch, 128 Mass. 489;Bank of Middlebury v. Rutland & W. R. Co., 30 Vt. 160;Jackson v. Walsh, 3 Johns. 226;Decker v. Freeman, 3 Greenl. 338;Vilas v. Reynolds, 6 Wis. 214;Perry v. Price, 1 Mo. 664;Eagle Woolen Mills Co. v. Monteith, 2 Or. 285;Chouquette v. Barada, 28 Mo. 491; Hickman v. Boffman, Hardin, 356; Railroad Co. v. Stimpson, 14 Pet. 448;Delassus v. U. S., 9 Pet. 117;New Orleans v. Halpin, 17 La. Ann. 185;Bank v. Dandridge, 12 Wheat. 64; Rex v. Hawkins, 10 East, 211; Powell v. Milburn, 3 Wils. 355; Hartwell v. Root, 19 Johns. 345.

Raymond, Lamoreux & Park, for respondent, cited the following cases: Eaton v. North, 20 Wis. 449; Sturdevant v. Mather, Id. 576; Dolan v. Trelevan, 31 Wis. 147;Putney v. Cutler, 54 Wis. 66, 11 N. W. Rep. 437;Dreutzer v. Smith, 56 Wis. 292, 14 N. W. Rep. 465;Pillow v. Roberts, 13 How. 475;Pierce v. Indseth, 106 U. S. 546, 1 Sup. Ct. Rep. 418;Williams v. Peyton's Lessee, 4 Wheat. 77;Huey v. Van Wie, 23 Wis. 613; Blackw. Tax Titles, 70-73, and cases cited; Lain v. Shepardson, 18 Wis. 59;Easley v. Whipple, 57 Wis. 485, 14 N. W. Rep. 905;Hendrix v. Boggs, 15 Neb. 469, 20 N. W. Rep. 28;Gue v. Jones, 25 Neb. 634-637, 41 N. W. Rep. 555;Reed v. Merriam, (Neb.) 18 N. W. Rep. 137;Baldwin v. Merriam, (Neb.) 20 N. W. Rep. 250; Young v. De Putron, 37 Fed. Rep. 46, affirmed 134 U. S. 241, 10 Sup. Ct. Rep. 539;Knox v. Peterson, 21 Wis. 247;Sprague v. Coenen, 30 Wis. 209;Smith v. Todd, 55 Wis. 459-464, 13 N. W. Rep. 488;Woodman v. Clapp, 21 Wis. 355-357; Knox v. Huidekoper, Id. 537; Putney v. Cutler, 54 Wis. 66, 11 N. W. Rep. 437;Bendixon v. Fenton, (Neb.) 31 N. W. Rep. 685; Black, Tax Titles, 224; Warner v. Trow, 36 Wis. 195;Kruger v. Supervisors, 44 Wis. 605;Horn v. Garry, 49 Wis. 464, 5 N. W. Rep. 897;Hixon v. Oneida Co., (Wis.) 52 N. W. Rep. 445-450;Lumber Co. v. Oneida Co., 72 Wis. 158, 39 N. W. Rep. 343.

ORTON, J.

This is an action of ejectment. The plaintiff complained in the usual form, and it was conceded that he entered the land and purchased it from the United States in January, 1873. Taxes thereon were duly assessed and levied for the years 1874 and 1875, and it was duly sold for such taxes in 1875 and 1876, respectively, to the county, and in May, 1878, a tax deed therefor was issued to one J. D. Gillett, the assignee of the county, on the sale of 1875. A tax deed therefor was also issued on the 11th day of May, 1879, to the said Gillett, assignee, on the tax sale of 1876, and duly acknowledged and recorded. A tax deed therefor was issued on the 10th day of November, 1883, by the county to C. J. Winton, the assignee of the county, on the tax sale of 1880. Title through mesne conveyances from J. D. Gillett and C. J. Winton was brought to the defendant L. S. Cohn. The defendant David Finn had an interest only by a contract to cut timber on said land. The answer of the defendants set up the said tax deeds and the statutes of limitation thereon. The tax deeds were objected to by the plaintiff's counsel, because not executed and acknowledged according to law. They were received in evidence, subject to the objection, but they were finally rejected in the findings of the court as being void for the want of the corporate seal of the county of Lincoln on each of said deeds. They were alike in this respect, and appear to have been otherwise in due form and according to law.

The only real question in the case on this appeal is whether said deeds bear the seal of the county of Lincoln. These deeds are signed by the clerk of Lincoln county, and a scroll seal affixed thereto. On the left-hand side there is stamped into the paper by a metal die a device like a seal, and the words, “County Clerk--Lincoln Co. --Wis.,” inclosed therein. In the attestation clause of the deed the clerk attests that he has subscribed his name hereunto officially, “and affixed the seal of the county board of supervision,” at Jenny, in the said county of Lincoln, etc. The certificate of acknowledgment of the deeds by the clerk of the circuit court, Lincoln county, Wis., states that “Herman Rusch, as county clerk, to me known to be the person who executed and affixed the seal of said county of Lincoln to the foregoing deed,” etc., “and the county clerk acknowledged that he has affixed said seal,” etc. The county is the grantor in tax deeds, and speaks only by its seal. This stamped device on the left of the clerk's signature is not the clerk's seal, for he has affixed to his name a scroll seal, and it is not in the proper place for his official seal. This stamped device must be the seal of the county, or of the county board of supervisors, referred to in the attestation clause of the deeds, and in the certificate of the clerk of the circuit court, and in the acknowledgment of the county clerk, for there was no other to which such reference could be made. The first deed was executed under section 51, c. 22, Laws 1859, and the other two under the Revision of 1878. The said section 51, c. 22, Laws 1859, provides: “In all cases hereafter, when a deed under this act shall be executed by the clerk of ‘county board of supervisors,’ or by the clerk of ‘the board of county supervisors,’ such deeds shall have affixed thereto the seal of such board, as the case may be, which is hereby declared to be the corporate seal of the county.” This is a very liberal statute. The true designation of that board is the “county board of supervisors.” It is the seal of the board, and yet it is “the corporate seal of the county.” Section 34, c. 13, Rev. St. 1858, provides that “every county board of supervisors shall have a seal, and may alter it at pleasure.” This would seem to imply that the board might adopt any kind of seal they pleased, and change it as often as they pleased. Section 669, subd. 8, Rev. St., provides that the board shall provide an official seal for the county and county officers, and “that the several official seals of the several county boards now in use shall be deemed to be the official county seals of the several counties, respectively, until others shall be adopted;” and section 1176 provides “that a tax deed shall be presumptive proof of the regularity of the proceedings up to and including the execution of the deed.” In Bemis v. Weege, 67 Wis. 435, 30 N. W. Rep. 938, it is held that the tax deed was presumptive evidence that the clerk was authorized to execute the deed by a proper resolution of the county board under section 1194, Rev. St.; and in Huey v. Van Wie, 23 Wis. 613, it is held that a tax deed executed by the deputy clerk was conclusive evidence of the existence of the contingency which authorized the deputy to act, which was the absence of the clerk, though the fact of his absence was not recited in the deed. The county clerk who executed these deeds for the county has certified in the deeds themselves, and in his acknowledgment of their execution, as strongly as language could do it, that such seal is the seal of the county, and that he affixed it to the deeds as the official seal of the county. The clerk of the circuit court certified to the same thing in his certificate of acknowledgment, and there was no evidence that the county had any other seal. This evidence in the deeds and their acknowledgment is very nearly conclusive that this seal was affixed to the deeds as the official seal of the county. This evidence, in view of the above statutes, is certainly sufficient to establish the presumption that this device is the adopted official seal of the county. The deeds themselves, in this respect, are presumptive proof of the regularity of their execution by the above statute, and the affixing of this seal to the deeds was a necessary and indispensable part of their execution. The statute does not make the form of the seal of any consequence. Any kind of a device that could be called or used as a seal is sufficient, and it may be changed as often as the county board sees fit; and, if none has been adopted, the seal in use shall be deemed to be the official county seal. The county board must be presumed to know that their clerk was using this device as their official seal of the county, and it seems to pass as approved and adopted by them, and without objection. This device is stamped into the paper as an indelible impression of a seal, and both “County Clerk,” and “Lincoln Co.” are within and a part of it.

The following authorities are cited to the principle that, if there is an expression in the body of the instrument, indicating or designating that the scroll used is used as the seal, it is sufficient: Lee v. Adkins, Minor, (Ala.) 187; Boynton v. Reynolds, 3 Mo. 79;Grimsley v. Riley, 5 Mo. 280;Walker v. Keile, 8 Mo. 301;Armstrong...