Peters v. Reichenbach

• Decision Date: 22 April 1902
• Citation: 114 Wis. 209,90 N.W. 184
• Parties: PETERS v. REICHENBACH.
• Court: Wisconsin Supreme Court

114 Wis. 209

90 N.W. 184

PETERS

v.REICHENBACH.

Supreme Court of Wisconsin.

April 22, 1902.

Appeal from circuit court, Jackson county; James O'Neill, Judge.

Ejectment by Henry Peters against Joseph Reichenbach. From a judgment for plaintiff, defendant appeals. Reversed.

The plaintiff claimed to own the N. W. 1/4 of the N. E. 1/4 of section 14, township 22, and range 4, in Jackson county. Defendant owned the government subdivisions immediately south of it. There was proof of several surveys of more or less particularity, extending from 1861, but none of them, except the last, by one Keach, having any special relation to the east and west one-eighth section line, dividing plaintiff's and defendant's premises. One of these surveys was made by Adams, county surveyor, in 1883 or 1884, and shortly after that the fence in dispute was built by plaintiff's predecessor in title and by the defendant. It does not appear that the line was specifically located by Adams, but he located other points in the section, and the representative of plaintiff's predecessor (one Crombie), with the aid of another, and the participation of the defendant, ran what they supposed to be the true line, and built the present fence thereon, each building half. There is no evidence of any dispute as to the true location of the line, nor of any agreement; apparently, simply a supposition that the line adopted was the true one. It appears that the premises had been separated by an old fence a number of years before, the location of which is not definitely established, but was partly north and partly south of the fence then built. That fence has continued up to the present time, accompanied by occupation, as the line, by both parties. In 1899 the defendant employed a surveyor (Keach) to make a survey, more especially of north and south lines through this section, in the course of which, however, he was obliged to locate the corners and quarter corners of section 14, from all of which the government monuments had disappeared, except the southeast corner of the section. A year later, at the employment of the plaintiff, and with the aid of the county surveyor, he repeated this survey, and located the line between plaintiff's and defendant's premises about four feet south of the fence which was built about 1884, as above stated. The action is to recover that strip. The plaintiff's title was deraigned from the government down, except that, with reference to the N. W. 1/4 of the N. E. 1/4, it involved a deed attempted to be proved by the record thereof in the register's office, purporting to be executed in New York, acknowledged before one Thomas Edward, Jr., as commissioner of deeds for the city of Brooklyn, who did not purport to affix any seal to the acknowledgment; but the record disclosed a certificate by the clerk of Kings county and of the supreme court of the state of New York, satisfying our statute in substance, and closing with the following words: “In testimony whereof, I have hereunto set my hand and affixed the seal of said county and court this 22d day of April, 1886. John M. Ranken, Clerk.” The record bears no scroll or other indication of any seal of this officer. The record of that deed was objected to for that reason. The correctness of Keach's survey as establishing the true line between the parties was submitted to the jury under instructions, and the jury returned a verdict in favor of the plaintiff, whereupon judgment was entered establishing plaintiff's title in fee simple and right to possession, and for nominal damages against the defendant for withholding the premises, from which judgment the defendant appeals.L. M. Sturdevant and F. J. Reichenbach, for appellant.

G. M. Perry, for respondent.

DODGE, J. (after stating the facts).

1. The first assignment of error raises the question of the admissibility in evidence, and the efficiency to establish title when admitted, of the record of a deed of April 20, 1886, which deed is sufficiently described in the statement of facts, as also the objection thereto. The necessity of some device on a copy to indicate the existence of a seal upon the original of a tax deed was discussed in Dolan v. Trelevan, 31 Wis. 147, approved in Hunt v. Miller, 101 Wis. 583, 77 N. W. 874; and it was there held, with reference to a copy attached to a pleading, that no such designation was necessary where the deed itself recited, above the signature of the county clerk, whose duty it was to affix the seal, that he had executed the same under the seal of the county board. In Putney v. Cutler, 54 Wis. 66, 11 N. W. 437, it was held that a fac simile of the county board's seal need not appear as a part of the record of a tax deed in the register's office; but that was held with reference to a record which bore a scroll with the word “Seal,” which, from its situation, was apparently ambiguous as to whether it was a private seal of the individual signing, or might indicate the presence of the county board's seal. But in Hiles v. Atlee, 90 Wis. 72, 62 N. W. 940, the exact question was before the court,--whether a page in the register's office, purporting to be the record of a tax deed required to be executed under the seal of the county board, was a record, when it did not bear either a fac simile of the county board's seal, or any scroll or other mark or statement to indicate that there was a seal on the original, except the recitation above the clerk's signature. It was there held that the county board's seal was an essential part of the deed, and that the absence of anything upon the record to indicate that it was present upon the original was conclusive of one of two propositions,--either that no such seal appeared on the original, or that the pretended record was not a record of the deed. We can discover nothing to distinguish the present case from that. The page from the books of the register of deeds was admissible in evidence only if it was a record of a deed bearing upon this clerk's certificate a seal, and, upon the reasoning of Hiles v. Atlee, the conclusion would seem to be inevitable, as in that case, either that the original had no such seal, so that it could not legally be recorded, or that the page presented was not a record of the deed. The admissibility in evidence of the register's record of a deed is entirely statutory, and depends on section 4156, Rev. St. 1898. Unless it is a record, within the terms of that section, of a deed legally recordable under sections 2219 and 2232, it is not given admissibility and was improperly received, and, being received over objection, proved nothing. We are therefore constrained to the conclusion that title in the plaintiff to the N. W. 1/4 of the N. E. 1/4 of section 14 was not established, and that recovery of the possession of any part...