Lander v. Bromley

Cassoday, J. The city of Ft. Howard was incorporated by ch. 164, Laws of 1873. As indicated in the foregoing statement, the land in question was situated within that city, and was assessed and sold for taxes' therein, and the tax certificate and deed were issued thereon by that city,-as required by the charter. The record of the deed, as made August 21, 1884, falsely stated that the sale took place in the city of Green Bay instead of Ft. Howard, as stated in the deed. [376] Had the sale in. fact been made in Green Bay, as thus stated in the record, it would manifestly have been void, for the reason that the city charter expressly required that it should be made at the city treasurer’s office in Ft; Howard ; and besides, the municipal officers had no authority nor color of right for making such sale outside of the municipality. Smith v. Sherry, 54 Wis. 122-127; Richards v. Cole, 31 Kas. 205; Robertson v. Baxter, 57 Mich. 127; Jackson v. Humphrey, 1 Johns. 498. The form of the tax deed required to be given on the sale was the one prescribed by the general statutes. Secs. 1178, 1179, B. S. That form required the place of sale to be therein stated. Ibid. Had the tax deed, therefore, stated that the sale took place in Green Bay, it would have been void on its face for the same reasons that the sale would have been void if it had in fact taken place in Green Bay. This being so, it would seem to follow that the record of' the deed, which falsely stated that the sale took place in Green Bay, was equally void upon its face. At the time of making that record the land was vacant and unoccupied. The question recurs whether such defective record operated as a constructive eviction of the real owner, so as to set the statutes of limitation running against her. The three years statute begins to run from “ the date of the recording of such deed.” Sec. 1187, E. S. The same is true of the nine months statute of limitations. Sec. 1210¿, S. & B. Ann. Stats. This court has frequently held that a tax deed, void upon its face, does not carry ’the constructive possession, nor operate as such constructive eviction. Cutler v. Hurlbut, 29 Wis. 152; Easley v. Whipple, 57 Wis. 485; Warren v. Putnam, 63 Wis. 410; Semple v. Whorton, 68 Wis. 626. The same rule must necessarily apply to the record of a tax deed void upon its face; and this must be so whether such record is a correct transcript of a deed void upon its face, [377] or a false transcript of a deed valid upon its face. In other words, in order to make tbe record of a tax deed set the statutes of limitation in motion, it must appear therefrom that it is the record of a tax deed valid upon its face. The mere clerical omission from such record or such deed of a word necessarily implied from the context, and hence not affecting the sense, nor obscuring the meaning, would not impair the deed, nor destroy the effect of such record. St. C. L. & L. Co. v. Ritchie, 73 Wis. 409. But the substantial requirements of the statutes must appear from the record itself. Even where a tax deed valid upon its face is delivered to the register for record, and by him correctly recorded at length in the record book, yet it is not to be considered as recorded until the proper entries thereof are made in the general index required to be kept by the register, and until then it does not set the statute of limitation in motion. Lombard v. Culbertson, 59 Wis. 433. Where there is a defect in such index, which is subsequently corrected, the record is only effectual from the time of such correction. Ibid. See, also, Int. Life Ins. Co. v. Scales, 27 Wis. 640. In other words, it is not only essential that there should be a record of a tax deed, valid upon its face, but the requisite index to such record. The false statement in this record is of such a character that it was not and could' not be helped out by the index. The question here involved is not one of notice, actual or constructive, but whether there was a substantial record which set the statutes of limitation in motion, and we must hold that there was not. The learned plaintiff contends that the owner lost her right to redeem from the tax sale upon the execution of the tax deed. In support of such contention, he relies upon a provision of the city charter to the effect that such owner should have the right to redeem “ within three years from the day of sale and any time before the deed is executed.” Sec. 18, subeh. 8. This is on the theory that such charter [378] provision is inconsistent with, if not repugnant to, the provisions of the Revised Statutes in respect to redemption, within the meaning of secs. 4986, 4987, R. S. By these sections all the provisions of the Revised Statutes were applied to • and put in force in the city of Ft. Howard, so far as applicable, and not inconsistent with its charter. The general statute provided that such owner might redeem from such tax sale “at any time before the tax deed executed upon such sale is recorded, and when so redeemed such deed shall be void.” Sec. 1165, R. S. The statutes authorizing the original owner to redeem from tax sales are to be liberally construed. Jones v. Collins, 16 Wis. 594; Karr v. Washburn, 56 Wis. 303. It will be observed that the provision of the charter quoted contains no negative or prohibitive words. It expressly authorized such redemption prior to the execution of the deed, but did not prohibit redemption thereafter, unless by mere implication. That provision and the general statute quoted are both affirmative and permissive. This being so, and in view of the liberal rule of construction mentioned, and the adjudications of this court upon similar questions, we must hold that there was' no repugnancy nor inconsistency between the provisions of the charter and the general statutes mentioned. See State ex rel. Knox v. Hundhausen, 23 Wis. 508; Jones v. Collins, supra; Kellogg v. Oshkosh, 14 Wis. 623; Swain v. Comstock, 18 Wis. 463. The result is that the owner had the legal right to redeem up to the time when the record in the register’s office showed a valid tax deed upon its face. Int. Life Ins. Co. v. Scales, 27 Wis. 640; Lombard v. Culbertson, supra; Semple v. Whorton, supra. This court has gone so far in that direction as to hold that the grantee in a tax deed has not such a right to the possession of the premises described therein as will enable him to maintain ejectment therefor until the tax deed is pro|3erly recorded. Hewitt v. Week, 59 Wis. 444. This is on the theory that such [379] tax deed does not operate to convey an absolute title until tbe right of redemption has been extinguished by making a proper and complete record of the deed. Here the redemption was complete before any such record was made. Of course, the plaintiff is entitled to the amounts paid and deposited for his benefit. By the Court.—The judgment of the circuit court is affirmed.