Hiles v. La Flesch

• Decision Date: 29 January 1884
• Citation: 59 Wis. 465,18 N.W. 435
• Parties: HILES v. LA FLESCH.
• Court: Wisconsin Supreme Court

59 Wis. 465

18 N.W. 435

HILES

v.LA FLESCH.

Supreme Court of Wisconsin.

Filed January 29, 1884.

Appeal from circuit court, Wood county.

L. P. Powers, for respondent, George Hiles.

Ring & Youmans, for appellant, Thomas J. La Flesch.

ORTON, J.

This is an action of ejectment against the defendant in possession; and in the complaint it is alleged that the defendant entered upon the land and cut off valuable timber, and committed great waste thereon, and the prayer therein is for the recovery of the possession of the land, and for damages for withholding the possession, and for the value of said timber. The answer denies each and every allegation in the complaint, and alleges the ownership of the timber so cut off in the defendant, and that the defendant claims the land under a tax deed issued to one Lawrence Ward on the fourth day of December, 1879, and recorded the same day, (and the deed is annexed as an exhibit,) and that the action is barred by the statute of limitations. The plaintiff demurred to so much of this answer as pleaded, or attempted to plead, the statute of limitations, and assigned as ground of the demurrer that the answer does not state facts sufficient to constitute a defense. This demurrer was sustained, and the defendant has appealed from the order sustaining the same. The only question, therefore, is, does the answer sufficiently set up the statute of limitations against the plaintiff's action?

(1) The recorded tax deed, by virtue of which the defendant claims the benefit of the statute of limitations, is substantially set out in the answer, and the deed itself is appended to the complaint as an exhibit. The setting up the tax deed in the answer, which showed that the statute of limitations, by virtue of it, had run against the plaintiff's action, was held a sufficient pleading of the statute, without further averments. Knox v. Cleveland, 13 Wis. 245;Dean v. Earley, 15 Wis. 100;Whitney v. Marshall, 17 Wis. 174. This answer in due form pleads the bar of the statute in connection with the tax deed so set out and appended, and of course is sufficient in this respect. It does not state the particular statute of limitations relied on, but it does allege that three years, one year, and nine months had elapsed before the action was brought since the recording of the tax deed. The benefit of all of the statutes of limitation is claimed. This, at most, was a mere uncertainty, or indefiniteness, which could have been remedied by a motion, and is not ground of demurrer. Flanders v. McVickar, 7 Wis. 372;Newman v. Kershaw, 10 Wis. 333;Spence v. Spence, 17 Wis. 448.

(2) Whether the defendant was in actual possession, or the land was vacant during the period of limitation, is quite immaterial; but the answer virtually admits the possession as alleged in the complaint. More than nine months had elapsed before the suit was brought, and since the recording of the tax deed. This is sufficient to create the bar of the statute against the plaintiff's action of ejectment. Section 6, c. 334, Laws 1878; section 1210 d, Rev. St. § 1; section 1, c. 250, Laws 1882.

(3) The main point made in this case for the respondent is that the tax deed was not entitled to registration by reason of the insufficiency of the acknowledgment. The certificate of acknowledgment is that, “before the undersigned, a notary public, in and for said county, personally appeared F. J. Wood, county clerk aforesaid, and acknowledged that he executed the above deed as county clerk of the county of Wood, state of Wisconsin, for and on behalf of said county and state, for the purposes therein mentioned.” There is in this certificate an absence of the clause between the words “aforesaid” and “and acknowledged,” required to be substantially inserted therein by the statute, (section 2217, Rev. St.,) and found in the form prescribed in said section, as follows: “to me known to be the person who executed the foregoing instrument.” The statute requires only that the certificate shall be “substantially” in that form, if it does so require, which, from the language, “shall be sufficient if made substantially” in the form prescribed, may be doubtful. Treating, however, this language as imperative, the question is whether this certificate is substantially in this form. The law of the District of Columbia required the officer to certify “that the grantor was known to him, or that his identity had been satisfactorily proved.” In Smith v. Garden, 28 Wis. 685, it was properly held by this court that an acknowledgment made in said district, leaving out these words, was no such acknowledgement as entitled the deed to record in the territory of Wisconsin by the laws thereof. The last clause of the requirement of the law in that case is significant as to proof of the identity of the grantor. The evident purpose of any such legal requirement is that the identity of the grantor as the person who executed the deed and the person who makes the acknowledgment, shall be authenticated or proved as a fact to the extent possible by the certificate of the officer. If, then, the certificate is sufficient of such indentity, it is substantially in the form required by the statute.

The statute of California in respect to acknowledgments is similar to that of the District of Columbia above referred to, only, if possible, more stringent, requiring the...