David v. Whitehead

Corn, Chiee Justice. Plaintiff in error brought this suit to enjoin the foreclosure of a mortgage and the sale of certain real estate described therein. It appears that defendant in error, Whitehead, prior to September 15, 1898, was the owner of the property, being- the patentee from the government. On that date plaintiff in error purchased the land at a sale for delinquent taxes, and he claims title by virtue of a tax deed issued to him by the County Treasurer. On February 13, 1901, Whitehead gave the mortgage in question to the defendant in error, Elizabeth Wilson, to secure the payment of the sum of three hundred dollars. By the statute, real property sold for taxes may be redeemed at any time before the expiration of three years from and after the date of the sale. And the statute further provides that immediately after the expiration of three years from the date of the sale of any lands for taxes, which have not been redeemed, the treasurer then in office shall make — 200 — out a deed for the land sold and deliver the same to the purchaser. On the trial, plaintiff offered in evidence his tax deed dated September 14, 1901, and, upon objection to its admission, the court excluded it upon the ground that it was void because prematurely issued. Counsel for plaintiff offered to prove the various steps taken by the taxing officers and the plaintiff preliminary to the execution of the deed, .and, further, to prove that the deed in question was acknowledged and delivered to the plaintiff on September 21, 1901, and that there was no delivery of the instrument up to that time. This evidence was objected to by the defendant as immaterial, incompetent, improper and irrelevant, and the objection was sustained. The defendant then made a tender of the amount shown to be necessary to redeem the land from the sale for taxes and the court gave judgment decreeing plaintiff’s deed to be void and dismissing his suit. Plaintiff in error relies upon two of his assignments of error; that the court erred, first, in excluding his tax deed, and, second, in refusing to permit him to make the offered proof. It is apparent that the sale having been made upon September 15, 1898, the three years for redemption would regularly expire upon September 15, 1901. But the latter date came on Sunday and by our statute is excluded in the computation. The last day for redemption was, therefore, September 16, and a deed executed and delivered to plaintiff prior to September 17 was premature, without authority of law and void. Counsel for defendant in error contends, and the court seems to have held, that the date of September 14, written in the deed, is conclusive proof that it was prematurely executed and is, therefore, void. We are unable to concur in this view of counsel, and we are not cited to any authorities which sustain it. In defining the word “execute,” Anderson’s Law Dictionary says that, referring to a conveyance or other document, it may mean, as in popular speech, to sign, or to sign and deliver; but in strict legal understanding, when said — 201 — of a deed, or bond, always means to sign, seal and deliver. And we are of the opinion that the mere fact that the date written in the deed was prior to the expiration df the time for redemption is not in itself conclusive proof that it was prematurely executed, and that it does not make the deed necessarily void upon its face. A deed takes effect from the time of its delivery. (9 Ency. Law (2d Ed.), 152; 1 Devlin on Deeds, 264.) And the date is no part of the substance of a deed and not necessary to be inserted. The real date of a deed is the time of its delivery. (Jackson v. Schoonmaker, 2 Johns., 229; McMichael v. Carlyle, 53 Wis., 504.) In the absence of any proof, or offer to prove, the time of delivery, it might be necessary to resort to such presumptions as might arise from the date inserted in the instrument, the date of the acknowledgment or registration or otherwise. But in this case the plaintiff offered to prove that the deed was acknowledged and delivered to the plaintiff on the 21st of September, and that there was no delivery prior to that time. So that there was no necessity for resorting to presumptions, as it is always competent to show when the instrument was delivered and that the date inserted was not the true date of its delivery. In McMichael v. Carlyle, supra, the court say: “Prof. Washburn, in his work on real property, says: ‘There is usually a date inserted in the deed, as indicating the time when the same was executed and delivered, and the law presumes that the deed was executed on that day; and this is so even if the date do not agree with the date of acknowledgment, for that may have been made after the delivery of the deed. In indentures this is commonly at the beginning of the instrument; but in single deeds or deeds poll it is generally inserted at the close. But though a presumption would arise that the deed was delivered and took effect on the day of the date, if there was nothing offered in evidence to control this, it is always competent to show that the date inserted was not the true date of its delivery. Besides, it is immaterial whether a deed — 202 — has any date or not; nor would it be affected though the date was an impossible one, like the 30th of February. Dates have, however, been in general use since Edward II and Edward III.’ (3 Washb. Real Prop. (4th Ed.), Sec. 19, p. 577.) In his notes the learned author cites a great many authorities, all of which I have examined, and find that they-support the doctrine laid down in the text. These authorities show beyond all question that a date is not essential to a deed; that it is not necessary one should be inserted in order to -make the instrument valid. ‘The real date of a deed is the time of its delivery.’ Kent, C. J., in Jackson v. Schoonmaker, 2 Johns., 234.” (53 Wis., 506.) And the Wisconsin court use the language just quoted in considering the necessity for a date in a tax deed. In 3 Devlin on Deeds, Sec. 1409, the author, in discussing tax deeds, says: “The real date of the deed is the time at which it is delivered.” And Blackwell on Tax Titles, p. 370, says; “The date of the deed may be proved by parol, and in the absence of evidence, it will be presumed to have been made at the proper time. This is in accordance with the general rule: the date is regarded as non-essential, the deed taking effect from its delivery, and when the date becomes material, in the course of litigation, an omission may be supplied, or the deed contradicted where a wrong date is given, by extrinsic eivdence.” And, so far as we have been able to ascertain, the authorities are entirely uniform on these propositions that the insertion of a date in a deed is non-essential, that the true date is the time of delivery, and that it is always competent to show the time when it was in fact delivered. If, as a matter of fact, therefore, the deed in this case was delivered on September 21, it was not prematurely executed and was not void for that reason, and the court erred in excluding it and in excluding the evidence of the time when it was actualfy delivered. Counsel for defendant in error dwells upon the principle that the treasurer was not authorised to exercise the power conferred upon him by law to make the deed until after the — 203 — expiration of the time for redemption, and contends that this is the controlling principle in the case. It is scarcely necessary to say that the principle is fully recognized as of universal application, not only that any attempt to exercise such power prior to the expiration of the time for redemption is ineffectual, but that the power does not arise, is not created, until such time has expired. But we simply hold in this case that, as offered to be proved by plaintiff in error, there was no exercise, or attempted exercise, of the power until September 21, several days after the expiration of the time for redemption. The drawing of the instrument was a mere clerical act which might be performed by any scrivener. The signing and sealing of the deed was likewise the mere clerical work of the treasurer and, no matter how complete his power, could not affect the title in any way until its delivery. As long as it remained in his possession, undelivered, he could do with the paper as he pleased, make alterations or corrections, destroy it fox the purpose of drawing another one more in accord with his ideas of the correct form or the like. In a word, there was no exercise of the power until he delivered the deed. But defendant in error, Whitehead, in his answer, alleged that, on the 12th day of June, 1901, the plaintiff in error served upon him a notice that the land had been purchased by plaintiff in error at tax sale, on September 15, 1898, and that the time for redemption would expire on September 15, 1901, at which time he would apply for a tax deed. And the answer avers that the tax deed is void for the reason, among others, that the notice did not correctly state the time when the right of redemption expired as required by the statute. The notice is attached to the answer and marked “Exhibit A.” The service of this notice as described is admitted by plaintiff in his reply, but he also avers that he fully complied with the requirements of the statutes with relation to the matter of obtaining the deed in question. Under our practice, the original papers are brought into this court and the notice in question is before us attached — 204 — to the answer of defendant Whitehead. And counsel for defendants in error contends that, conceding that the court erred in excluding the deed and the evidence in support of it, yet the judgment should be affirmed for the reason that the notice is clearly insufficient under the statute and the deed, therefore, void; that the judgment is right and ought to be affirmed. As this court ought not to send a case back for retrial on account of errors which do not affect any substantial rights of the plaintiff in error, if it be conceded that the notice was insufficient to support the tax deed in question, the point made by the counsel presents some apparent difficulty. But when the condition of this record is considered, it is apparent that the proposition urged by counsel does not come within the principle relied upon; which is that, if upon the whole record it appears that the decision of the District Court was right and that, upon another trial, no other judgment could legally be rendered, this court will not reverse, although there was error upon the trial. Dor it is perfectly clear from the bill of exceptions that the question of the sufficienc3>- of this notice, or of any notice, necessary under the statute as preliminary to the application for a tax deed, was never presented to, or passed upon by, the trial court. Upon the contrary, the court refused to hear evidence of it, or of anjr notice, and rejected such evidence upon the ground that the tax deed was void on its face. Moreover, as has been frequently held by this court, an exhibit attached to a pleading as this is, is not a part of the pleading. It was not offered in evidence, is not incorporated into the bill of exceptions and is, in no sense, a part of the record so as to be considered b)'' this court, which must, of necessity, decide questions only upon the record. Indeed, while the giving of this particular notice is admitted by plaintiff in his reply, this court has no assurance that it was the only one given or the one relied on by plaintiff. For, while admitting the giving of this notice in his reply, he afterwards avers that he has fully complied with the requirements of the statutes — 205 — in the matter. What we are askecl to do, therefore, is in substance to go outside of the record and inspect this paper and, if it appears upon its face that it is insufficient, to declare the tax deed void and affirm the judgment, although the paper was not in evidence before the lower court and although that court refused to receive evidence that the necessary statutory notice was in fact given. However willing this court may be that there should be an end of litigation, it has no jurisdiction or authority to dispose of cases in this summary way. A good deal is said in the briefs of counsel in regard to a tender of the taxes to the officer on September 16, 1901, alleged in the separate answer of Whitehead to have been made by him in an attempt to redeem the land. Whitehead avers that the treasurer refused to accept the tender, upon the ground that it was too late and that the plaintiff had already received a tax deed. It would seem that if this tender was made as alleged that any tax deed issued thereafter would be unauthorized and void. But the tender was denied by plaintiff in his reply and no evidence was offered in support of the allegation of tender on the trial. We suppose, therefore, the matter is not before this court for its consideration. Defendants in error further urge that plaintiff in error in its reply admits that the tax deed in question was delivered to him on the 14th day of September, 1901, and is precluded from introducing evidence contradicting such admission. The language relied upon is as follows: “Plaintiff admits the allegations therein contained to the effect that on the 14th day of September, A. D. 1901, prior to the issuing of the said injunction and subsequent to the recording of said mortgage deed, he did apply for and obtain from the County Treasurer of the Count}' of Laramie, in the State of Wyoming, a treasurer’s deed or tax deed to the said real estate: and that at the time of his application for said tax deed the defendant Wilson’s mortgage was of record in the office of the County Clerk of Laramie County.” — 206 — This language is without doubt susceptible of the construction insisted upon by counsel, and, standing alone, the court might feel bound to so construe it, as it is not easy to comprehend how plaintiff in error could “obtain” the deed unless it was delivered to him on that day. But, in a subsequent part of the same pleading, the plaintiff alleged: “That on the 14th of September, 1901, as provided by law, he applied for a tax deed or treasurer’s deed for the said land, the 15th of said month falling on Sunday; and that thereafter and on September 21, 1901, the treasurer of said County of Laramie did make, execute and deliver to him said tax or treasurer’s deed, which he thereupon and on said 21st day of September, 1901, did duly file for record.” And the two statements must be construed together and with reference to the allegations of the answer to which they are a reply. Construing them in this way, it is evident that, in the first statement, the pleader had special reference to the averment of the answer that, at the time of his application for the tax deed, the defendant Wilson’s mortgage was already of record and not to the date of the delivery of the deed. While, in the second statement, he alleges specifically the date of the delivery. Perhaps under the common law rule, that a pleading shall be construed most strongly against the pleader, a different conclusion might be reached. But that rule is abrogated by our statute which provides that the allegations of a pleading shall be liberally construed with .a view to substantial justice between the parties. (Hall v. Paine, 14 O. St., 41; Crooks v. Finney, 39 O. St., 57.) And, taking the reply as a whole and construing all its parts together, in order to ascertain the intention, as we must do, we find nothing- to indicate, in the face of the pleader’s specific averment that the deed was delivered on September 21st, that it was his intention to allege or admit that it was delivered on September 14th. On account of the errors pointed out, we are of the opinion that the judgment must be reversed and the cause remanded for a new trial. Reversed and remanded. PoTTER, J., concurs.