Scheiber v. Kaehler

• Decision Date: 11 May 1880
• Citation: 5 N.W. 817,49 Wis. 291
• Parties: SCHEIBER v. KAEHLER AND ANOTHER.
• Court: Wisconsin Supreme Court

49 Wis. 291

5 N.W. 817

SCHEIBER

v.KAEHLER AND ANOTHER.

Supreme Court of Wisconsin.

Filed May 11, 1880.

Appeal from circuit court, Milwaukee county.

Sylvester, Cotzhausen & Scheiber, for respondent.

E. S. Turner, for appellants.

TAYLOR, J.

This was an action of ejectment, to recover the possession of three tracts of land. The first tract described in the complaint is five and three-quarters acres of land in the north-west corner of the west half of the south-west quarter of section 10; the second tract is described as all the west half of north-west quarter of section ten, (10,) except five acres of land lying on the west side of Cedar creek; and the third tract as one-quarter acre of land lying and being in the south half of the north-east quarter of section number nine, (9,) and bounded on the north, on the west and on the south by land owned by one H. Krohn, and on the east by Cedar creek and the mill-dam thereon.

Upon the trial the plaintiff, in order to prove his title to said tracts of land, introduced in evidence four tax deeds issued by the county of Ozaukee to parties from whom the plaintiff derives his title. The first tax deed offered in evidence was issued to one Joachim Saehn, as grantee, bearing date the thirty-first of January, 1872. This deed is executed by “Joseph Albrecht, clerk of the board of supervisors, by Gustav Gotze, deputy.” The description of the lands conveyed by said deed is as follows: “The west half of the north-west quarter, and grist and saw-mills, except therefrom five acres, being west of Cedar creek, in section number 10, town number 10 north, of range number 21 east, containing 75 acres.” The deed also recites that the land was sold for the non-payment of taxes, by the proper county officer, on the eighth of May, 1866. This deed was recorded in the office of the register of deeds for the county of Ozaukee, on the thirty-first day of January, 1872.

The second tax deed was issued to Joachim Saehn, bears date November 3, 1871, and was executed by “Joseph Albrecht, clerk of the county board of supervisors.” This deed was also recorded in the proper office, on the thirty-first day of January, 1872. The description of the lands conveyed by this deed is as follows: “Five three-fourths acres in the north-west corner, west half, south-west quarter, bounded north by quarter line, west by section line of section nine (9) and ten, (10,) and south-east by Carrigan's land, section ten, (10,) town ten (10) north, range twenty-one (21) east, five three-fourths acres.” It also recites that the lands were sold for the non-payment of taxes May 8, 1866.

The third deed was issued to Frederick Kaehler; bears date February 25, 1873; was executed by “John C. Schroeling, clerk of the county board of supervisors;” was recorded in the proper office the twenty-sixth day of February, 1873. The land conveyed by the deed is described as follows: “One-quarter acre (1/4) in the south half of north-east quarter, bounded north-west and south by H. Krohn's land, east by mill-dam and Cedar creek, section No. 9, in township No. 10, of range No. 21 east, containing 25-100 acres of land,” and also recites that the lands were sold for the non-payment of taxes on the eleventh day of May, 1869.

The fourth deed was issued to Frederick Kaehler; bears date October 20, 1874; was executed by “John C. Schroeling, county clerk;” was recorded December 14, 1874. The lands conveyed by this deed are described as follows: First, there is a description of a quarter acre of land, which is admitted to be a misdescription, and the plaintiffs do not claim to derive any title to the quarter acre of land described in the complaint under this deed. The second description is as follows: “Also the west half (W. 1/2) of north-west quarter (N. W. 1/4) of section ten, (10,) in town ten (10) north, of range twenty-one (21) east, including the grist and saw-mill thereon situated, and excepting therefrom three (3) acres west of said Cedar Creek; and, also, two (2) acres east of said grist-mill and the race in front of mill, containing seventy-five acres.” The third description is as follows: “Also the north-west corner of the west half (W. 1/2) of the south-west quarter (S. W. 1/4) of said section ten (10) north, of range twenty-one (21) east, being bounded north by the quarter section line, west by section line dividing sections nine (9) and ten, (10,) and on the south and east by Patrick Carrigan's land, and containing five acres; and, also, recites that the lands were sold for the non-payment of taxes May 9, 1871.

The plaintiff introduced conveyances from the grantees in said tax deeds, showing that any title to the lands described therein, which vested in such grantees, was conveyed to and vested in the plaintiff in this action.

The defendants admitted that they were in possession of the lands described in the complaint at the time the action was commenced and at the time of the trial, and after giving some evidence as to the value of the use of the premises the plaintiff rested. The defendants moved for a nonsuit, which was denied, and defendants duly excepted; and thereupon the defendants introduced certain records of the county of Ozaukee relating to the assessment and sale of the lands for taxes, as mentioned in said tax deeds, and giving some evidence tending to show that the persons owning said lands at the time the taxes were levied, and during the time the warrants for the collection of the same were in the hands of the proper town treasurers, had personal property, out of which said town treasurers might have collected said taxes. The case was tried by the court without a jury, and the court found in favor of the plaintiff for all the lands described in the complaint. Exceptions to the findings of fact and conclusions of law were duly made and taken by the defendants.

The defendants appealed from the judgment rendered in favor of the plaintiff, and the learned counsel for the appellants, in a very exhaustive and elaborate brief, has assigned and argued a great number of exceptions taken on the trial to the validity of the tax deeds upon which the plaintiff bases his title. Most of the exceptions are taken to the formality of the deeds, and relate to matters appearing upon the face of the deeds themselves. After a careful consideration of these exceptions we are constrained to hold that none of them are well taken. The deeds are strictly in the form prescribed by statute, except as to the signatures. The exception that the county clerk has signed the deeds as “clerk of the board of supervisors” instead of “county clerk” is cured by the statute changing the designation of this office from clerk of the board of supervisors to “county clerk.” See Laws 1871, § 1, c. 131. There is no force in the objection that the clerk does not designate himself as clerk of the board of supervisors of Ozaukee county. It is recited in the attesting clause of the deeds that “I, Joseph Albrecht, the clerk of the county board of supervisors of the county of Ozaukee, have executed,” etc. The signature following this, “Joseph Albrecht, clerk of the county board of supervisors,” sufficiently indicates that he is the clerk of the county board of supervisors of the county of Ozaukee. That the first deed, which was executed by the deputy clerk, was properly acknowledged is settled by the decision of this court in Huey v. Van Wie, 23 Wis. 613.

The exception that the first tax deed offered in evidence was void, because of the uncertainty of the description, we think, is not well taken. As was said by the learned counsel for the respondent, if there be any uncertainty in the description it relates to that part of the land lying west of Cedar Creek, and it is certainly good for all the land lying east of the creek and in the tract described in the deed; and we are inclined to hold that in the absence of evidence to the contrary, it must be held that just five acres of the tract was west of the creek and 75 acres east thereof. The evidence introduced by the defendant shows that the first tax deed above described was issued upon a sale of the 75 acres of land for the alleged non-payment of taxes levied and assessed in 1864, which were returned for that year as uncollected, and re-assessed upon the lands in 1865, and not then paid. The taxes on this land, which were levied and assessed strictly as taxes for 1865, were fully paid before sale. It is urged that this re-assessment of the taxes of 1864, in the year 1865, upon the 75 acres, and the sale of the 75 acres for such re-aessessed tax, is void. The records introduced in evidence show that in 1864 the west half of the north-west quarter of said section 10, containing 80 acres, without any exception or reservation thereupon, was assessed as a whole at the sum of $4,360. This is shown by the assessment roll of 1864, and also by the tax roll of that year, the only difference between the two being that the assessment roll, as equalized, puts the valuation of the 80 acres at $4,360, and the tax roll has it $4,320. The evidence also shows that all the taxes assessed on the whole 80 acres in 1864 were paid, except the town taxes assessed thereon, and the tax roll shows that the town taxes assessed upon the whole of said 80 acres in 1864, and which were not paid, were $116.18, and no more.

The town treasurer, in his return of the unpaid taxes levied and assessed in 1864, made in 1865, states that there remains unpaid on the west quarter of the north-west quarter, and grist-mill and saw-mill, less land lying north of Cedar creek, of said 80, section 10, town 10, $121.99. This return was supposed to be imperfect, or illegal, and the land was not sold at the tax sale in 1865. The records then show that in 1865 this sum of $121.99 was charged, not against the whole 80 acres, against which it was charged in 1864, but against 75 acres, being a part of said 80 acres, lying east of Cedar creek; and the five...