Ritchie v. Catlin

Winslow, J. We entirely agree with the circuit judge in his conclusion that the plaintiff’s tax deed is fair on its face, and we shall spend no time discussing this question. There is another question in the case, however, upon which we think the circuit judge erred. The land sued for is described in the complaint as lots 194, 196, and 198, West Sixth street, in the city of Superior, and upon the town site of Superior as the said town site has teen surveyed and platted and the plat thereof recorded. The tax deed upon which plaintiff’s title is founded describes the property as certain lots in the county of Douglas, to wit, “ West Sixth street lots 194, 196, and 198, in the town of Superior.” Doubtless the court was fight in taking judicial notice of the fact that the territory of the town of Superior is now included within the limits of the city of Superior, but even then it cannot be said, looking at the language of the deed alone, that the lots named are on the town site of Superior as surveyed, platted, and recorded, or in fact that there was such a town site in existence. The land cannot be located by the description in the deed alone. Can the deed be aided by extrinsic evidence? We think that it can. By its reference to a street, and to numbered lots upon such street, we think there is a clear reference to some recorded plat; and, such being the case, we think the description coúld be aided by extrinsic proof, as in Reinhart v. Oconto Co. 69 Wis. 352. If it was shown bjr evidence that there was in 1866 a recorded plat within the then limits 'of the town of Superior containing lots answering to the description in the deed, and no other recorded plat within such limits containing lots answering to the calls of the deed, we think that this evidence would render it certain that the description in the deed referred to such lots. But there was no evidence of the kind. The court presumed these facts, because there was no evidence [113] to the contrary. This was reversing the rules of evidence. The plaintiff must recover, if at all, on the strength of his own title. Extrinsic evidence being absolutely necessary to show that the descriptions in the deed referred to the lofs for which he sues, the plaintiff must introduce such evidence in making his case. This view necessitates reversal. No other points require attention. By the Oourt.— Judgment reversed, and action remanded for a new trial.