Gilkey v. Cook

• Decision Date: 18 March 1884
• Citation: 60 Wis. 133,18 N.W. 639
• Parties: GILKEY v. COOK.
• Court: Wisconsin Supreme Court

60 Wis. 133

18 N.W. 639

GILKEY

v.COOK.

Supreme Court of Wisconsin.

Filed March 18, 1884.

Appeal from circuit court, Marinette county.Webster & Brazeau, for appellant, George F. Gilkey.

Hastings & Greene, for respondent, W. P. Cook.

COLE, C. J.

This is an action of ejectment, commenced September 7, 1883. For the purposes of the trial it was admitted that the plaintiff had the patent title and was entitled to recover unless the defendant was the owner of the land by virtue of a tax deed bearing date and recorded May 29, 1882, issued on the tax sale of 1879. No question was made but that the statute of limitations was well pleaded in the answer. The plaintiff objected to the admission of the tax deed in evidence on the ground that it was void upon its face because it was executed by the deputy clerk in his own name. The objection was overruled and the deed was received in evidence. The plaintiff then sought to impeach the tax deed by showing irregularities in the tax proceedings, but this evidence was excluded because the nine-months limitations had run upon the deed before the suit was commenced. The defendant had judgment.

The first question to be considered is, was the tax deed properly executed by the deputy clerk in his own name? We think the question must be answered in the affirmative. The statute requires the county clerk to appoint a deputy in writing under his hand, and in case of the absence or disability of the clerk, or of a vacancy in the office, such deputy is authorized to perform all the duties of the clerk during such absence or until the vacancy is filled. Section 706, Rev. St. The county clerk is the officer to execute tax deeds. Section 1176. As the deputy, in the absence or disability of the clerk, is clothed with all the statutory powers of that officer and required to perform his duties, there can be no doubt but he may execute the tax deed. But the question is, how must he execute it? It is claimed by the learned counsel for the defendant that the deputy, in the absence of the clerk, is, pro hac vice, the incumbent of the office, and may execute the deed either by describing himself and signing it as deputy, without naming the clerk, or by reciting and writing the clerk's name and adding, by himself as deputy. In either form it is said it plainly appears that the deputy, in the exercise of a power vested in him by law, executed the deed, and that the clerk did not. This position, we think is sound, and it is fully sustained by the authorities cited on the brief of counsel. In Huey v. Van Wie, 23 Wis. 613, the tax deed was executed by the deputy, who signed the clerk's name and added his own name as deputy. The deed was held to be well executed. In the opinion I say the power to make the deed is vested in the officer, and when the deputy acts he should do so in the name of his principal. I refer to the general rule that any ministerial duty may be performed by deputy, and add that the deputy should proceed in the name of his principal. This general remark is doubtless open to the just criticism passed upon it by counsel, that it was not necessary for the decision there made, and fails to make the proper distinction between an act performed by an agent on behalf of his principal and an act performed by a deputy who is authorized by law to do the act in question. In the one case the agent derives his authority to act from his principal for whom he acts. In the other the deputy derives his authority from the law which clothes him with all the power of the clerk in the given case, or rather makes him the officer to perform that duty for the occasion. The distinction is well founded in reason and should not be overlooked. It follows from this view that the tax deed was properly executed by the deputy, in his own name.

The next question is, could the tax deed be impeached by showing such irregularities in the tax proceedings as would avoid it, or was that inquiry foreclosed by the bar of the statute? We stated at the outset when the action was commenced, and when the tax deed was recorded. What limitations, under the circumstances, must apply? The defendant's counsel says the nine-months limitation; the counsel on...