Smith v. Todd

• Decision Date: 10 October 1882
• Citation: Smith v. Todd, 55 Wis. 459, 13 N.W. 488 (Wis. 1882)
• Parties: SMITH v. TODD.
• Court: Wisconsin Supreme Court

55 Wis. 459

13 N.W. 488

SMITH

v.TODD.

Supreme Court of Wisconsin.

Filed October 10, 1882.

Appeal from circuit court, Winnebago county.

James Freeman, for appellant.

Moses Hooper, for respondent.

ORTON, J.

It appears from the records of the county treasurer that the premises in question were bid off by and duly sold for taxes, and a certificate thereof issued to the county of Winnebago, May 11, 1875, and that the county treasurer thereafter, on the twenty-fifth day of September, 1875, sold said certificates to one Henry Sherry, and as evidence and an assignment thereof to him indorsed the same in blank. It must be presumed that the county clerk had knowledge of such records and the facts therein stated when he issued and executed the tax deed of said premises to the defendant on which he relies in this suit as evidence of his title. It appears in evidence that said Henry Sherry, on the twentieth day of June, 1881, made a written assignment to the defendant of a large number of tax certificates, including those in question, and that thereafter, on the twenty-fourth day of September, 1881, the county clerk issued and executed to the defendant said tax deed as the assignee thereof, and that no assignment thereof to the defendant had ever been “indorsed upon or attached to said certificates.” The question involving the validity of this tax deed is of the authority of the county clerk to issue and execute it to the defendant, and this must be determined solely by construction of the statute in relation to the assignment of tax certificates; and, notwithstanding the able and plausible argument of the learned counsel of the respondent, we must regard the question as settled by previous decisions of this court.

In State v. Winn, 19 Wis. 304, the question was directly involved whether the county clerk was required to issue a tax deed to the grantee of a quitclaim deed from the first assignee of the tax certificate by an assignment in blank from the county, treating the quitclaim deed as an assignment thereof, but which was, of course, not indorsed thereon or attached thereto, and this required a construction of the two provisions relating to such assignments found in sections 14 and 54 of chapter 22, Laws 1859. The first provision is as follows: “Which certificate shall be assignable, and any person's interest therein may be transferred by a written assignment indorsed upon or attached to the same;” and the second provision is: “And the same may be assigned by the purchaser writing his name in blank on the back thereof, and by the county treasurer in like manner, with his official character added.” Both of these provisions, so far as they have any bearing upon this question, are put together and remain the same in section 1140, Rev. St. It was held in that case that the county clerk was not required to issue the tax deed to such last assignee, because his assignment was not on or attached to the certificates. This decision is exactly in point as authority in this case, unless overruled. By such a construction, it must be admitted, it is difficult, if not impossible, to divine what was the object or intention of the legislature in allowing the first purchaser to assign by indorsement in blank, unless it was to allow...