Swain v. Comstock

By the Court, Oole, J. This case turns upon the question whether section 123, chap. 15, R. S. 1849, applies to the tax [468] deed offered in evidence by tbe defendant below. It is insisted and claimed by the plaintiff in error that that provision of law cannot apply to that deed, for several reasons, the more important of which we will proceed to notice. The deed recites that it was given on a sale of the premises for taxes which were levied “ pursuant to an ordinance of the president and trustees of the town of Milwaukee on the west side of the riverand it is argued that there is no evidence whatever in the case from which the court could possibly be authorized to assume that there was ever in existence any such corporation as “ The Town of Milwaukee on the west side of the river." We have no doubt such a corporation once existed, of which we must take judicial notice, although we have been unable to find the act of the legislature incorporating it. We find however an act of the territorial legislature, approved February 21, 1839 (Sessions 1838 & 9, No. 30, p. 45), which recognizes, in the clearest and most satisfactory terms, the existence of a corporation described as “ the president and trustees of the town of Milwaukee on the west side of the river,” and which authorizes such a corporation to levy and collect a tax for the support of common schools “ in the same manner and at the same time that the corporation tax is now by law levied and collected.” There is a further recognition by the legislature of such a corporation, though not in as express language, in the subsequent act No. 53 (Sessions 1838 & 9, p. 114). And in addition to this we have the decision of the supreme court of the territory of Wisconsin in the case of Dousman v. Ths President and Trustees of the Town of Milwaukee, at the July term, 1839, (Appendix to Laws of 1840-41, p. 178), in which the court say “ that the town of Milwaukee on the west side of the river was incorporated and became a body corporate and politic in 1837.” From all this we feel fully warranted in assuming that a corporation existed on and prior to the 29th day of January, 1889, of the name and title of “ The Town of Milwaukee on the west side of the river.” [469] The deed in this case was made and executed by tbe treasurer of tbe city of Milwaukee in 1849, and it' is claimed that be was not authorized to execute a tax deed upon a certificate of sale made by tbe collector of tbe “ Town of Milwaukee on the west side of tbe river.” By tbe act No. 53, above cited, entitled “ an act to change tbe corporation limits and powers of the town of Milwaukee,” to use tbe language of tbe court in Dousman v. The President & Trustees &c., “tbe two towns of east and west Milwaukee were united, and tbe old corporation dissolved.” There was to be a vote of tbe people upon tbe question whether the two corporations should be consolidated, and in case tbe majority was in favor of tbe adoption of tbe act, tbe clerks and treasurers of tbe old corporations were required to transfer all tbe books, papers and moneys in their bands to tbe clerk and treasurer of tbe new corporation, which was to be known by tbe name of the President and Trustees of tbe town of Milwaukee. Sections 1 and 25. By tbe last clause of section 38 of the city charter of 1846 (Laws of 1846, p. 164), tbe city treasurer was authorized to execute deeds for all lands sold for taxes levied by tbe president and trustees of tbe town of Milwaukee as theretofore incorporated, which deeds were to have tbe same force and effect as deeds given on tax sales under tbe charter. It is true, this provision does not say, in express words, that tbe city treasurer should execute deeds where tbe lands bad been sold by tbe collector of tbe “ Town of Milwaukee on the west side of the river;” but can there be a rational doubt that tbe intention was to confer that power in those cases ? As tbe two corporations bad been united in 1839, and thereafter were known by tbe name of tbe new corporation, nothing was more natural than that tbe legislature, in authorizing tbe city treasurer to execute tax deeds in all cases where sales bad theretofore been made by either of the old corporations, should use tbe language it did in this provision. Tbe president and trustees of the town of Milwaukee, became tbe legal successor to tbe two old corporations, tbe custodian [470] of their books and papers, tbe owner of their moneys and property, and clothed with their police and governmental powers and privileges. And therefore the legislature, in authorizing the city treasurer to give certificates of redemption, and to execute deeds for all lands sold for taxes levied by the president and trustees of the town of Milwaukee, must be deemed to have conferred upon that officer the power to execute the deed in this case. Eor we cannot doubt that the legislature intended to cloth him with full authority to execute tax deeds in all cases of sales theretofore made by any corporation to which the town of Milwaukee had become the successor. There is nothing in the evidence that shows that the grantee in the tax deed was in possession of the land sold in January, 1889, as a vendee. The only proof upon that point is the testimony of the defendant below, that he had been in possession of the premises sometime previous to the commencement of the suit; that he derived possession from Paul Burdick, who had occupied them for about ten years to his knowledge, and, as he had been informed, much longer; and that Burdick claimed to have gone into possession under an agreement with Kilbourn for the purchase of them. This testimony is quite too indefinite and uncertain to authorize us in saying that Bur-dick, the grantee in the tax deed, was in- possession of the land in 1838 under a contract with the owner to purchase it. The last objection is, that section 123, chap. 15, does not apply to a deed executed by the officer of a city, but only to those conveyances executed by the clerk of the board of supervisors. This is contrary to the construction which has uniformly been placed upon that section, and inconsistent, we think, with the plain intention, purpose and policy of this enactment. We have no doubt that the circuit court was right in holding that the statute of limitations had run upon this deed. The judgment of the circuit court is affirmed.