Geekie v. Kirby Carpenter

• Citation: 106 U.S. 379,1 S.Ct. 315,27 L.Ed. 157
• Parties: GEEKIE, Sheriff, etc., and another v. KIRBY CARPENTER Co
• Decision Date: 04 December 1882
• Court: United States Supreme Court

106 U.S. 379

1 S.Ct. 315

27 L.Ed. 157

GEEKIE, Sheriff, etc., and another v. KIRBY CARPENTER Co.

December 4, 1882.

S. D. Hastings, Jr., for plaintiffs in error.

L. S. Dixon and B. J. Brown, for defendant in error.

BLATCHFORD, J.

This suit was brought in a court of the state of Wisconsin, by Peter W. Geekie, sheriff of Oconoto county, Wisconsin, and William Klass, citizens of Wisconsin, against the Kirby Carpenter Company, an Illinois corporation, and was removed into the circuit court of the United States for the eastern district of Wisconsin, before answer. The cause of action set forth in the complaint was that the plaintiff Klass was the owner of certain saw-logs lying in the waters of the Menominee river, in Oconto county, Wisconsin; that in April, 1876, the plaintiff Geekie, as such sheriff, levied on and attached said logs under a writ of attachment issued against said Klass by the circuit court of said county; that the defendant, by its employes, took, in Wisconsin, a large quantity of saw-logs from the sheriff, and converted them to its own use, to the value of $8,500; and that the sheriff expended $940 in endeavoring to safely keep the logs so wrongfully taken, and as increased expense in keeping what logs the defendant did not succeed in taking. The claim made is for treble damages, with interest. The answer sets up that the logs were not the property of Klass, but were the property of the defendant; that whatever the defendant did in regard to the logs was done under a writ of replevin issued in a suit brought by it, as plaintiff, in the circuit court for Menominee county, Michigan, to the sheriff of that county, commanding him to take said logs and deliver them to it; and that said sheriff took said logs into his custody under said writ in said county of Menominee, in the state of Michigan, and delivered them to said company.

The case was tried before a jury. The record states that the jury 'rendered a special verdict in answer to the questions propounded by the court, said questions and the answers of the jury thereto being as follows.' There is no other or further special verdict than the eight questions and answers which then follow, and there is no general verdict for either party. Afterwards the plaintiffs moved the court 'upon the special verdict,' and on 'the records and evidence in said cause,' 'for judgment in their favor for $6,791.56, with interest at the rate of 7 per cent. per annum from April 24, 1876, and costs.' The defendant also moved for judgment in its favor on the 'special verdict,' 'and because in law the plaintiffs established no cause of action.' The court ordered judgment in favor of the defendant and overruled the motion of the plaintiffs for judgment in their favor. Judgment was rendered for the defendant, against the plaintiffs, for $186.02, costs. This writ of error is brought by the plaintiffs to review and reverse this judgment.

At the trial, as appears by the bill of exceptions, the plaintiffs, to show title in Klass to the logs, offered in evidence a tax deed from the state of Wisconsin and Oconto county to one S. A. Coleman, dated and acknowledged April 27, 1867, and the certificate of its record indorsed on it, showing that it was recorded in the office of the register of deeds for said county, on the same day. The defendant objected to the reception of the deed in evidence (1) because it was not in the form prescribed by statute; (2) because it was not executed and acknowledged as required by law; (3) because it was void upon its face. The court reserved its rulings on said objections, and received said deed and certificate in evidence subject to said objections. Like objections and a like ruling were made in respect to a certified copy of the record of said deed, showing the date of its recording. The deed covered 79 58-100 acres of land in section 13, in town 33, of range 22, and 120 acres in section 14, in town 33, of range 22, being five several tracts, all in Oconto county. The sale was for $12.20, which was the amount of the taxes and costs of sale. The plaintiffs then proved that Klass purchased from Coleman the timber standing on the premises described in the deed; that all the logs in controversy were cut by Klass from the premises during the winter of 1875 and 1876, and put into the river; that the premises remained vacant and unoccupied during the whole of the three years next after the recording of the deed; that the logs were held by Geekie, as sheriff, under a regular and valid attachment and levy; and that the company claimed to own the logs and sought to take them from the custody of Geekie.

After the plaintiffs had rested, the defendant offered to show by certified copies of the records from Oconto county that the county treasurer of that county, in making the sale of the lands on which the said tax deed to Coleman was based, added to the amount of all legal taxes and charges for which each of said tracts was liable to be sold the sum of five cents to pay for a United States revenue stamp to be placed on the certificate issued to the purchaser on such sale; that said illegal excess of five cents was included in the amount for which each one of said tracts was sold; and that a five-cent United States internal-revenue stamp was affixed to each one of said certificates of sale. The plaintiffs objected to the reception of said evidence as incompetent and immaterial, because said tax deed was regular and valid on its face, and had been recorded more than three years before the commencement of the action and the cutting of the timber. The court reserved its ruling on said objection until the close of the case, and received said testimony subject to said objection. It was then admitted by the plaintiffs that the facts relative to said sale were as the defendant offered to show them to be, but not waiving their objection to said evidence, or consenting to its being received. The defendant then gave evidence showing that it owned in fee-simple, at the time the tax deed to Coleman was executed and recorded, the premises from which said timber was cut. After the close of the evidence the questions to be answered by the jury were submitted to them by the court, and they were answered by the jury. The bill of exceptions states as follows:

'Both said plaintiffs and said defendant filed motions for judgment on the pleadings, records, and evidence in said cause, and, upon the argument of said counter-motions and said objections to testimony reserved, the court overruled said defendant's objections to the admissibility of said tax deed in evidence, and said plaintiffs' objection to said defendant's testimony showing the illegal excess of five cents in the amount for which each of said tracts of land was sold by said county treasurer, and overruled said plaintiffs' motion for judgment and ordered judgment for said defendant; to each of which said rulings against said plaintiffs, said plaintiffs then and there duly excepted.'

To obviate any objection that this court could not review the judgment in this case because there was no general verdict of the jury, and no special verdict in any form known to the common law, and no waiver in writing of a jury trial, and no such proceeding of the court below upon the facts as is provided for by section 649 of the Revised Statutes, the parties have filed in this court a written stipulation, agreeing 'that the facts appearing from the special verdict and stated by the bill of exceptions to have been proved, shall be taken and considered as the facts in this case for all purposes, and as fully as if they had been specifically found by the circuit court;' and 'that the circuit court submitted certain questions to the jury by agreement of the parties, and that the other facts were to be found and stated as shown by the bill of exceptions, and that upon the whole case, as thus shown, judgment was to be pronounced by the court below, as they should determine the law.' The ground upon which the circuit court overruled the objection of the plaintiffs to the testimony on the part of the defendant to show the illegal excess of five cents in the amount for which each of the tracts of land was sold, was that, in being sold to raise the five cents, the land was sold for that which was not a tax; that the amount assessed against the land for a tax was less than the amount for which it was sold; that, although a tax was included in that amount, there was also included in it that for which the land could not be sold; and that this fact deprived the officer of the power to sell and made the tax deed void. The statute of Wisconsin applicable to this subject is found in chapter 138 of the General Laws of 1861, §§ 5 and 6:

'Sec. 5. No action shall be commenced by the former owner or owners of any lands, or by any person claiming under him or them, to recover possession of land which has been sold and conveyed by deed for non-payment of taxes or to avoid such deed, unless such action shall be commenced within three years next after the recording of such deed. Sec. 6. The limitation for bringing actions prescribed in the last preceding section shall not apply * * * where the taxes for the non-payment of which the land was sold and the tax deed executed were paid prior to the sale, or where the land was redeemed from the operations of such sale, as provided by law, nor where the land was not liable to taxation.'

The sole question presented under these provisions is whether the land in this case can be said not to have been sold for non-payment of taxes, because in the $12.20 for which it was sold was included 25 cents for the five stamps, in addition to $11.95 for taxes proper. It is admitted that the land could not properly be sold to raise the five cents as a tax, and that, if the question had been raised on behalf of the original owner of the land in a suit commenced within three years next after the recording of the deed on...