McMichael v. Carlyle

• Decision Date: 22 November 1881
• Citation: 53 Wis. 504,10 N.W. 556
• Parties: MCMICHAEL v. CARLYLE.
• Court: Wisconsin Supreme Court

53 Wis. 504

10 N.W. 556

MCMICHAEL

v.CARLYLE.

Supreme Court of Wisconsin.

Filed November 22, 1881.

Appeal from circuit court, Crawford county.

Thomas & Fuller, for appellant.

G. L. Miller and Wm. H. Evans, for respondent.

COLE, C. J.

The plaintiff attempted to make good his right or title to the wood in controversy through a tax deed. His vendor, Wilcox, who was the grantee in the tax deed, finding the wood cut upon the land embraced in the deed, took possession of the same and sold it to the plaintiff. There is no dispute as to where the wood was cut, but the defendant, in his answer, claimed that the land was his. On the trial the tax deed was offered in evidence by the plaintiff, and excluded because it was not dated. The tax deed was regular and perfect in all respects, except as to its date. But the officer executing the deed failed to fill up the blank as to the year, so that the deed read as follows: Executed, etc., “this fifteenth day of September, in the year of our Lord one thousand eight hundred and --.” The deed was properly witnessed and acknowledged, the acknowledgment bearing date September 15, 1870. It was proven by the records, without objection, that the deed was recorded in the office of the register of deeds of the county on that day. The real date of the execution of the deed was also proven by the grantee. And as the plaintiff's counsel proceeded to ask the witness when the deed was actually delivered to him, the circuit judge refused to allow the question to be answered, saying the presumption was that the deed was delivered at the date of the acknowledgment, and he would so hold as a matter of law. But still the learned judge refused to permit the deed to be given in evidence for any purpose, and finally nonsuited the plaintiff. The only exception we shall consider is the one taken to this ruling.

The form of a tax deed as prescribed by statute then applicable to the instrument contains a blank for the full date, which is usually filled up when the deed is executed and delivered by the officer. See section 50, c. 22, Laws 1859; also, section 166, c. 18, Tay. Rev. St. While the date of the recording of the deed is important because it fixes the time from which the limitation begins to run, (section 172, c. 18, Tay. Rev. St.,) still there is nothing in the statute declaring the effect of an omission to fill up the date. Therefore, what legal consequence will follow from the failure to date a tax deed must be determined by general principles of law which are applicable...