Ward v. Walters
| Decision Date | 31 March 1885 |
| Citation | 22 N.W. 844,63 Wis. 39 |
| Parties | WARD AND OTHERS v. WALTERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Marathon county.
Grace & Craven, for appellants.
Brown & Pink and James & Crosby, for respondent.
This is an appeal from a judgment in an action of ejectment. The case was tried by the court without a jury. No bill of exceptions was settled in the case, and the only question in the case is whether the pleadings and the findings of fact support the judgment in the case. The pleading on the part of the appellant and plaintiff is the ordinary statutory complaint in such action; on the part of the defendant the answer is a general denial, and sets up title in himself. The court finds as facts:
(1) That the plaintiffs showed title in themselves from the United States government to the land described in the complaint.
(2) That the defendant claimed to be the owner of said lands by virtue of a tax deed issued upon a tax sale for 1878, for the non-payment of the taxes of 1877, which was duly recorded in the office of register of deeds in Marathon county, in volume 22 of tax deeds, on page 568, and which purports to have been executed by Henry Miller, county clerk of Marathon county; the signature, execution, and acknowledgment being as follows:
State of Wisconsin, County of Marathon--ss.: Be it remembered that on this eighth day of March, A. D. 1883, before me personally came John W. Miller, deputy county clerk of Marathon 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.
B. W. JAMES,
Notary Public, Marathon county, Wis.”
(3) That the only affidavit on file in the office of the county clerk of Marathon county, Wisconsin, made by the county treasurer for the posting of the notices of tax sale for the year 1878 for the tax of 1877, was as follows:
“ State of Wisconsin, Marathon County--ss.: I, F. W. Kickbush, county treasurer of Marathon county, Wisconsin, do hereby solemnly swear that I have duly compared the annexed printed list of lands and property with the original list on file in my office; that the same is a true copy thereof, and that the same is a true and correct list of lands in said county of Marathon, Wisconsin, upon which the taxes remain unpaid for the year one thousand eight hundred and seventy-seven; that on the sixteenth day of April, A. D. 1878, and within the time required by law, I caused true copies of said tax-list, and the tax-sale notice thereto attached, to be posted in four public places in said county, and one copy thereof to be posted in a conspicuous place in my office, and otherwise proceeded as by law required.
F. W. KICKBUSH,
County Treasurer, Marathon Co., Wisconsin.
Subscribed and sworn to before me, June 1, 1878.
JOHN RIERGLE,
Notary Public, Wisconsin.”
(4) That the action was commenced in July, 1883.
(5) That the land was wild and unoccupied, and the defendant claimed title to said lands by virtue of said tax deed.
(6) That defendant does not plead the statute of limitations in his answer.
(7) That the tax sale in 1878, in Marathon county, was made on May 14, 1878.
There were some other findings of fact, but, as they relate to matters which are not considered in the decision of the case, they need not be stated. Upon the facts found the learned circuit judge held that the title to the land in dispute was vested in the defendant by virtue of the tax sale and tax deed executed thereon and delivered to him by the county clerk of Marathon county. Judgment was entered accordingly in favor of the defendant, and the plaintiff appeals to this court, and assigns as error that upon the pleadings and facts found the judgment should have been in favor of the plaintiff.
The learned counsel for the appellant contends that upon the facts found the defendant's tax deed was void, and did not, therefore, divest the title of the appellant or convey any title to defendant,-- First, because the tax deed was not acknowledged as required by law; and, second, because the affidavit of the publication and posting of the notices of the tax sale shows that the notices of the sale were not posted a sufficient length of time before the sale took place, and because it is defective in not naming the public places in the county where such notices were posted.
We think the first objection is not well taken. The deed was properly executed by the deputy clerk in the name of the clerk. See Huey v. Van Wie, 23 Wis. 618;Scheiber v. Kaehler, 49 Wis. 291;S. C. 5 N. W. REP. 817. To us it seems very clear that the acknowledgment of the deed is sufficient to entitle it to record. The object of an acknowledgment is to verify the fact that the person whose name is subscribed to the deed did in fact subscribe the same as his deed; or, if he signed it as deputy or agent, that he subscribed it for his principal. The acknowledgment as found and set out in the findings of fact, it seems to us, shows conclusively that the party who makes the acknowledgment was the deputy clerk who executed the deed in the name of his principal, and he acknowledges that he executed such deed as deputy clerk for the purposes mentioned therein. The recitation in the acknowledgment is that John W. Miller, deputy county clerk, etc., appeared before the acknowledging officer, and that he acknowledged the execution of the deed by him as such county clerk, etc. The words “as such county clerk” evidently mean “as such deputy county clerk,” no other county clerk having been referred to by the officer in his certificate of acknowledgment. We think the form of the acknowledgment is entirely sufficient.
The objection to the sufficiency of the affidavit of posting the notices of the tax sale is, we think, well taken. The affidavit of such posting shows that they were first posted on the sixteenth day of April, 1878, and the finding of the court is that the tax sale was on the fourteenth day of May, 1878. Section 1130, Rev. St., among other...
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