Dreutzer v. Smith

• Decision Date: 12 December 1882
• Citation: Dreutzer v. Smith, 56 Wis. 292, 14 N. W. 465 (Wis. 1882)
• Parties: DREUTZER v. SMITH.
• Court: Wisconsin Supreme Court

56 Wis. 292

14 N.W. 465

DREUTZER

v.SMITH.

Supreme Court of Wisconsin.

Filed December 12, 1882.

Appeal from circuit court, Door county.

O. E. Dreutzer, for appellant, Gus. A. Dreutzer.

Timlin & Manseau and S. D. Hastings, Jr., for respondent, Joseph Smith.

TAYLOR, J.

This is an action of ejectment. The plaintiff showed title to the lands described in the complaint, derived from the United States. The defendant set up a tax deed, executed by the county clerk of Door county, bearing date March 10, 1881, to the defendant as grantee, purporting to convey the same lands to the defendant. The deed was based upon a tax sale made May 9, 1876. The deed recites that the defendant was the assignee of Door county. The attestation clause of the deed recites as follows: “and have hereunto affixed the seal of said county board of supervisors of Door county at Sturgeon Bay,” etc. The defendant, in his answer, set up the tax deed as a defense, and pleads also the statute limitations in bar of any objection to the validity of the tax deed, on account of any matters occurring in the tax proceedings previous to and including the issue of the tax certificate on which the deed was founded. The plaintiff objected to the tax deed because it showed upon its face that it was not properly sealed with the seal of the county. This objection was overruled. The plaintiff then offered to show that the tax certificates upon which the deed was issued had been assigned by the county to the town of Sevastopol, and delivered to the agent of that town, and he offered the tax certificates themselves for the purpose of showing they never were assigned to any one. The certificates were produced, and they were in the usual form. There was an indorsement on the back of each as follows:

“December 31, 1877, assigned.

A. D. THORP, County Clerk of Door county.”

This was the only assignment on any of the certificates, and it was admitted that this assignment was placed on them by a stamp, no part of the indorsement being in the handwriting of Thorp, the county clerk, except the date; that Thorp affixed the stamp himself, and he was the party who issued the deed, and was county clerk of Door county at the time the assignments were made and at the time the certificates were transferred. It is said by the learned counsel for the respondent that the stamp was a fac-simile of the clerk's handwriting. After the certificates with the stamped assignments thereon were exhibited and the foregoing admissions made, the court excluded all the evidence in regard to the certificates and the assignment thereof, and the plaintiff's counsel excepted. The rulings of the court upon the objection to the validity of the deed and the rejection of the evidence offered by the plaintiff were assigned as error. The objection that the deed was void because not properly sealed, was, we think, properly overruled. Previous to the Revision of 1878 the only seal of the county was the seal of the county board of supervisors, and this seal was used to authenticate all the acts of the county where the seal of the county was required for such authentication. Section 34, c. 13, Rev. St. 1858; 1 Taylor, St. p. 301, § 42. This seal was also used in the execution of tax deeds. Section 51, c. 22, Laws 1859; 1 Taylor, St. p. 439, § 167. Subdivision 8, § 669, Rev. St. 1878, gives the county board power “to provide an official seal for the county, etc. * * * The 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 provided.”

Under this provision we must presume that the clerk, in executing the deed, performed his duty and affixed the seal of the county to the deed. If he in fact fixed a seal formerly used by the county board of said county, such seal will be presumed to be the only seal the county had, until proof be made that the county board had procured another county seal, as authorized by the provisions of said section 669, Rev. St. 1878. It is alleged by the learned counsel for the appellant that the certificates offered in evidence, with the stamped assignments of the clerk thereon, show that they had never been assigned by the county, and so show the deed void for want of authority in the county clerk to issue a deed to any one other than the county. The objection to the assignment is that it was not in the proper handwriting of the clerk and was therefore void. We think the county clerk may under the statute assign a tax certificate by putting his name on the back thereof with a stamp. If the name of the county clerk, with his official character added, be stamped by him on the back of the certificate with the intent to assign the same, it is a compliance with the statute which authorizes him to assign the same “by writing his name in blank on the back thereof, with his official character added.” The statute does not require in express terms that the county clerk shall indorse on the back of the certificate his written signature, and so does not come within the terms of that part of subdivision 19, § 4971, which provides that “in all cases where the written signature of any person is required it shall be in the proper handwriting of such person,” etc. The statute requires that “he shall by writing his name,” etc., assign, and the question is whether a person may not write his name, within the meaning of these words, in any other way than with a pen, by forming the letters thereof separately. Does he not, when he takes a stamp upon which the letters composing his name are fixed in their proper order, and especially if the letters on the stamp are a fac-simile of the letters as they would be formed by him if made there with an ordinary pen, and stamps his name with one motion of his hand, as effectually write his name as though he made the letters separately?

We are clearly of the opinion that such stamping the name is writing the same, within the meaning of the statute; and we are more strongly convinced of the propriety of so holding, from the fact that the same statute declares that the words “written” and “in writing” may be construed to include printing, engraving, lithographing, and any other mode of representing words and letters. It is true, this definition does not in express terms define the words “by writing,” and so it may be said it is not applicable, and has no force in defining the words “by writing.” We may, however, we think, consider the definition given by the statute to the words “written” and “in writing” as showing the liberal construction which should be given to all words or terms of a like character where used in the statute. It cannot, we think, be doubted that if it were not for the statute which declares that “when the written signature of any person is required by law, it shall always be the proper handwriting of such person,” etc., the statute which requires him to assign the certificate “by writing his name on the back thereof,” would be complied with by placing it on with a stamp, as was done in this case. See Barnard v. Heydrick, 49 Barb. 62;Schneider v. Morris, 2 M. & S. 286;Brown v. Butchers' & Drovers' Bank, 6 Hill, 443;Sanderson v. Jackson, 2 Bosw. & P. 238; Hubert v. Turner. 11 L. J. R. (N. S.) C. P. 78; Johnson v. Dodgson, 6 L. J. R. (N. S.) Exch. 185; Lobb v. Stanley, 13 L. J. R. (N. S.) Q. B. 117.

In the case of Potts v. Cooley, 13 N. W. REP. 682, an assignment was held sufficient when the official character of the clerk was printed after the written name. All the cases seem to hold that when a party places his name to an instrument in writing with intent to be bound thereby, it is immaterial whether the name be printed, written, or stamped; either will answer the purpose, and is a compliance with a statute requiring his subscription or signature. If this be so, then we cannot say that such statute necessarily requires the written signature of the clerk, and so does not come within the provision above quoted. We think the cases of Scott v. Seaver, 52 Wis. 184, [[S. C. 8 N. W. REP. 811,] and Mezchen v. More, 54 Wis. 214, [S. C. 11 N. W. REP. 534,] cover the point made by the learned counsel for the appellant, and are conclusive that the objection to the assignment is not well taken. The argument that it would tend to fraudulent assignments of certificates if allowed, does not seem to us to have any great force. As was said by LE BEANE, Justice, in Schneider v. Morris, supra, such stamping, if required to be done by the party or by his authority, would afford the same protection as signing.” See, also, remarks of Lord ELLENBOROUGH in same case.

If it be a fact, as is said by the learned counsel for the appellant, that there is no such phrase in the Revised Statutes as “written signature,” such fact is not conclusive that we must apply the definition to other phrases which might be construed to include as one of their definitions the term “written signature,” for at least two...