Laughlin v. Kieper

• Decision Date: 02 May 1905
• Citation: Laughlin v. Kieper, 125 Wis. 161, 103 N.W. 264 (Wis. 1905)
• Parties: LAUGHLIN v. KIEPER ET AL.
• Court: Wisconsin Supreme Court

125 Wis. 161

103 N.W. 264

LAUGHLIN

v.KIEPER ET AL.

Supreme Court of Wisconsin.

May 2, 1905.

Appeal from Circuit Court, Florence County; John Goodland, Judge.

Action by T. I. Laughlin against Ottelie Kieper and another. From a judgment for plaintiff, defendants appeal. Reversed.

Action in ejectment. The issues litigated concerned whether plaintiff was the owner of the land in dispute under the patent title without efficient interference by a tax deed title; and also the owner thereof under such a deed acquired at first by Margaret McHale in 1885; and whether his claim of title was subordinate to a tax deed acquired by one Gaiser July 7, 1897, duly recorded, and mesne conveyances made before the commencement of the action vesting the title under such deed in defendant, Ottelie Kieper. She pleaded the making and recording of the Gaiser tax deed, the acquirement of title by her thereunder and the perfection thereof as regards irregularities occurring before the making of such deed by the statute of limitations, section 1188, Rev. St. 1898. The facts in that regard were fully established on the trial in her favor, unless the tax deed was void on its face, or the same was not properly recorded so as to set the statute of limitations running. The defects claimed to exist in the deed and record thereof are stated in the court's findings, in effect, as follows: The concluding portion of the deed is in these words: “And affixed the seal of the said county board of supervisors at Florence in said county of Florence this 7th day of July, A. D. 1897.” In lieu thereof in the record are these words: “And affixed the seal of said county of Florence, at my office in said county of Florence, this 7th day of July in the year of our Lord one thousand eight hundred and ninety-seven.” The signature to the deed was in this form: “C. S. Hopkins, County Clerk of Florence County,” and in connection therewith were the words inclosed “County Clerk of Florence County, Wisconsin,” followed by the word “Seal.” The signature in the record was in this form: “C. S. Hopkins, County Clerk of Florence County, Wis.” The acknowledgment was in these words: “Be it remembered, that on the 7th day of July, A. D. 1897, on behalf of Florence county and the state of Wisconsin, personally came before me, C. S. Hopkins, county clerk of the county of Florence, to me known to be the person so described in, and who executed the foregoing instrument, and acknowledged that the same was executed freely and voluntarily for the uses and purposes therein mentioned.” The record was as follows: “Be it remembered, that on this, the 7th day of July, A. D. 1897, before me personally came the above named C. S. Hopkins, county clerk of Florence county, to me known to be the person who executed the above deed and acknowledged the execution thereof by him as such county clerk, for the uses and purposes therein mentioned.” Though the findings make no mention of the matter it was conclusively shown by evidence that in connection with the record of the signature to the deed there was a scroll seal with three ink lines drawn by a pen across the same, and that the erasure was made by a person other than the register of deeds after the date of the record.

On such findings and others to the effect that plaintiff was the owner of the premises in controversy and entitled to recover the same, subject to whatever rights defendant Kieper had under the Gaiser tax deed, the court held that by reason of defects in such deed appearing upon the face thereof and in the record of the same, defects shown by the evidence in the proceedings prior to the issuance of the deed, rendering it void, unless cured by the statute of limitations, were not so cured, and that plaintiff was entitled to the relief prayed for, subject to such protection as defendant Kieper was by law entitled to, as to taxes paid by her and interest thereon, and permanent improvements upon the land, she being required to account for the value of the use thereof during her occupancy. The value of such use was assessed at $675, and the amount of taxes and interest and permanent improvements was fixed at $703.30. Judgment was awarded accordingly, with costs against defendant Kieper, from which this appeal was taken.Eastman & Martineau, for appellants.

A. W. Shelton (Max Sells, of counsel), for respondent.

MARSHALL, J. (after stating the facts).

A conclusion has been reached without considering any question discussed by counsel other than such as concern the tax deed under which appellant claims title.

It is contended that the attesting clause of the Gaiser tax deed is defective because the recital as to the seal affixed thereto is in these words: “Seal of the county board of supervisors,” instead of words describing the seal as the county seal. True by subdivision 8, § 669, Rev. St. 1898, the only seal for the authentication of instruments officially executed by the county clerk at the time of the execution of the deed in question was the “seal of the county”; that the county board of supervisors of the county, as a corporate body, had no seal, and section 1176, Rev. St. 1898, expressly provided, as to tax deeds, for their execution under the “seal of the county,” but it is settled law that strict accuracy in the words of a tax deed is not necessary. A form is prescribed, and it is provided that a deed in substantially such, or an equivalent form, shall be sufficient. Section 1178, Rev. St. 1898; Hunt v. Stinson, 101 Wis. 556, 77 N. W. 901. So if the term used in the deed in question was substantially the same as the one that should have been used it is a fair equivalent therefor, and the irregularity is not material.

The name of the seal formerly used by a county clerk in authenticating his official acts, and the only county seal, was known as the seal of the county board of supervisors. The Legislature, in effect, gave thereto a new name, viz: “The seal of the county.” When the old name is used no one is misled thereby. It suggests at once to every person of reasonable intelligence in respect to public matters, that it stands for the “seal of the county.” The new and old terms are really equivalents and it has been so repeatedly held in each of several instances where the irregular use of the old form was relied upon to defeat a tax deed. Hiles v. Atlee, 90 Wis. 72, 62 N. W. 940;Putney v. Cutler, 54 Wis. 66, 11 N. W. 437;Dreutzer v. Smith, 56 Wis. 292, 14 N. W. 465;Bulger v. Moore, 67 Wis. 430, 30 N. W. 713;Brown v. Cohn, 85 Wis. 1, 54 N. W. 1101, 20 L. R. A. 182.

The seal impressed on the...