Sexton v. Appleyard

Lyoít, J. This is an appeal from a judgment for the plaintiff in an action to recover certain lands in the county of Raeine, sold to the plaintiff, December 15, 1870, by the commissioners of school and university lands, at a sale of forfeited mortgage •lands, and conveyed to him by the commissioners. At the time of such sale, the defendant Appleyard; the appellant, was the owner of the equity of redemption in a part of said lands, and he was in possession of such part thereof when the action was commenced, and when it was tried. The complaint is in the usual form of complaints in actions of lilce character, and the answer of the appellant is a general denial. On the trial, .the plaintiff introduced in evidence the patent for such lands, issued to him by the commissioners. This proved, prima facie, that the plaintiff had lawful title in fee simple to the lands therein described (Laws of 1866, ch. 58), and, with the other evidence in the case, entitled him to judgment for the recovery of. such lands, unless one of the objections which will now be considered, is well taken. — 239 — I. It was claimed that no legal and sufficient notice of tbe sale was published. Unless such notice was published for the time and in the manner required by law, the sale is invalid, and tbe plaintiff has no title to the lands in controversy. But the patent is prima facie evidence that be has lawful title thereto. Hence the patent must be prima facie evidence that the notice was duly and legally published. If the patent proves title in the plaintiff, it must necessarily prove that all of the proceedings essential to vest the title in him have been taken. To avoid or destroy the prima facie effect of the patent in this particular, the defendants read in evidence on the trial, copies, duly certified from the school land office, of the notice of sale, and of an affidavit made by Hamilton Utley, one of the publishers of the Racine Journal, a weekly newspaper printed and published in Racine county, which affidavit is to the effect that such notice of sale was published in that paper for nine successive weeks, commencing September 14,1870. The jurat is dated November 30, and the notice of sale September 22, in the same year. The statute requires the .commissioners “to advertise the mortgaged property for sale in one or more newspapers printed in the county where the land is situated * * * for sixty days.” The affidavit shows a publication of the notice of sale for sixty days in an authorized newspaper. But, conceding that the effect of the affidavit as evidence of due publication of the notice is destroyed by the fact that it fixes the time at which the publication was commenced, eight days before the date of the notice, still there is nothing in it, or in the other testimony in the case, which destroys or weakens the prima facie proof derived from the patent, that there was a legal and sufficient publication of the notice of sale. That proof is intact, and hence the due and legal publication of such notice is a verity in the case. The plaintiff produced as a witness Wm. L. Utley, also one of the proprietors of the Racine Journal, who testified (under — 240 — objection by the defendants) that the notice of sale was published in such newspaper, once in each week successively, from October 12 to December 14, 1870; the last publication having been made on the last mentioned day. This gives nine publications, and sixty-four days notice of the sale. It is not material to determine whether this testimony was properly admitted; but unless there is some statute to the contrary (and our attention has not been directed to any such statute), we see no good reason why the publication of the notice may not properly be proved in that manner. II. The notice of sale of the forfeited mortgaged lands describes one parcel thereof as follows: “N 1-2 ne, sec. 3, town 2, range 19,” etc. It is objected that this description is insufficient in that the abbreviation “ ne,” without any other words or characters to denote what particular portion of the section .was intended, fails to describe any specific tract of land, and hence that the patent for the N. 1-2 of the N. E. 1-4 of section 3, is void for want of such description in the notice. The land in controversy between the plaintiff and the appellant is a part of the last above described tract or lot. Were this a question between grantor and grantee in an ordinary conveyance of land, there is no doubt that the description is sufficient. The land is described according to the system established by law for making government surveys, of which system the courts take judicial notice. “ Ne” is an abbreviation of “North-east,” in constant and universal use. There is no north-east portion of a section known in government surveys, other than the north-east quarter of the section. Hence, in a conveyance or other instrument which employs the phraseology of the governmental system of surveys to describe land, if the north-east or N. K subdivision is indicated, it necessarily results that, the north-east quarter of the section is intended. Every person of common intelligence would so under-s'and it. But were this a question upon a tax deed issued prior to the — 241 — enactment of eta. 53, Laws of 1866, ttae description would doubtless be field insufficient, on the authority of several cases decided by this court, in which a very strict rule, requiring great accuracy of description, has been applied to that particular class of conveyances. Curtis v. Supervisors of Brown Co., 22 Wis., 167; Orton v. Noonan, 23 id., 102; Delorme v. Ferk, 24 id., 201; Jenkins v. Sckarpf, 27 id., 472. Which of the foregoing rules is properly applicable in this case ? We think that this question has been answered by this court (and we believe correctly answered) in favor of the more liberal rule, in the case of Jensen v. Weinlander, 25 Wis., 477. That was an action to recover land, which, as in this case, had been mortgaged to the state to secure a loan from the school fund, had been forfeited and sold, and a patent therefor issued to the plaintiff. It was claimed that the patent was void, and conveyed no title to the plaintiff, because the notice of sale named a certain day in the year “ 1761,” as the day of sale. It was, of course, apparent that this was a mistake, and that “ 1861 ” was intended. The sale was made on the day intended, and the validity of the patent issued to the plaintiff pursuant thereto was sustained on the ground that no one could be misled by the mistake in the notice. We have here a direct application, to a case precisely like the present one in principle, of the more liberal rule which prevails in controversies between grantors and grantees in ordinary conveyances. Had the question in that case arisen upon a tax deed issued prior to the enactment of the law of 1866, the decision would doubtless have been different. The fact that the defect or mistake in the notice of sale did not (as it does in this case) relate to the description of the land, but only to a date, is quite immaterial. The principle is the same in either case; and that principle is, that in the class of conveyances then and now under consideration, and the proceedings preliminary thereto, the consequences of alleged errors or omissions must be determined by an appli — 242 — cation of the more liberal rule before mentioned, and not bj the strict rule which formerly prevailed in cases of tax deeds. Without regard, therefore, to the provisions of ch. 53, Laws of 1866, we conclude that the description in the notice of sale indicates the land to be sold with reasonable certainty, and is sufficient in that particular to support the patent under which the plaintiff claims title to the land in controversy. The foregoing views render it unnecessary to determine whether the act of 1866 is by its terms applicable to this class of cases. III. It is further claimed that the lands described in the notice of sale and patent were not sold in parcels, or, at least, that it does not appear affirmatively that they were thus sold, and that the patent to the plaintiff is invalid for that reason. The law requires that sale shall be made “ of so much of the mortgaged premises, to the highest bidder for cash, as will pay the amount due for principal, interest, damages and costs of advertising and selling the same " (Tay. Stats., 641, § 118); and it further provides that such sale may be in parcels, so that the whole amount required be realized thereby (id., 643, § 125.) The certificate or statement of sale shows that the lands described in the notice of sale and patent were, at the time and place mentioned in the notice, fairly struck off and sold to the plaintiff for the precise sum alleged to be due the state. The statute makes such statement evidence of the matters therein stated. Tay. Stats., 643, § 126. We are of the opinion that the law does not require the commissioners to sell in parcels in all cases ; but, in the exercise of a sound discretion, they doubtless may do so. Should they refuse or neglect to do so in a proper case, it is probable that a court of equity would grant relief; but it is very doubtful whether an abuse of discretion in that respect would be ground for holding the patent void at law.. In the present case, conceding that the premises were not sold in parcels, there is no pretense that there was any abuse of discretion on the part of — 243 — the commissioners, or that any injury bas resulted to any person by reason of the failure to sell in parcels. IY. The only remaining objection to the validity of the patent, to be determined, is, that the interest on the mortgage for the whole of the year 1870 is one of the items for which the lands were sold, whereas the sale took place December 15,1870, and interest could not lawfully be computed beyond that day. The only evidence we find as to the amount of interest collected is a clause in the notice of sale, as follows: “Amount due, $400; amount of interest, penalty, taxes and advertising, $50.34; total due the state, $450.34; years for which interest is due, 1870.” Itis impossible to find from this evidence alone that the interest for the whole of the year 1870 was collected. The words of the clause above quoted may signify only that whatever interest was included in the aggregate amount for which the land was sold, accrued in the year named. Besides, the interest for the whole of the th’en current year was due at the commencement of such year, by the terms of the note which the mortgage was given to secure. The note contained a promise by the mortgagor to pay the interest annually in advance. But, conceding that the commissioners were not authorized to collect interest beyond the day of sale, the excess is the interest on $400 for seventeen days, which is about $1.32. In the absence of any proof that any person was or could have been injured or prejudiced by the irregularity, we can not hold that it operates to defeat the title of the plaintiff under the patent. Failing to find that either of the objections to the validity of the patent is well taken, it necessarily follows that the judgment of the circuit court must be affirmed. By the Court. — Judgment affirmed.