Hotson v. Wetherby

PinNey, J. The principal objections made to the respondent’s title are laches in taking and recording the tax — 330 — deed, and that, by abandonment of the purchase, all rights under the certificate of sale were lost before the deed was issued; that it was not properly recorded so as to give constructive notice of its existence and afford a basis for the statute of limitations of three'years; and that the issue of the deed had been barred by the statute before its date, and that the completion of the index entry of the registry of the deed was void and inoperative, and, until lawfully recorded, the deed was wholly void and ineffectual. 1. The tax deed is in the form prescribed by the statute (sec. 50, ch. 22, Laws of 1859; R. S. sec. 1178), and the objection that it shows on its face a sale of the thirty or more blocks included in it for a gross sum of $80 is not maintainable. The recital is that these several blocks (describing them, and set opposite each the amount) “ were, for the nonpayment of taxes, sold by the treasurer of said county, at public auction, at,” etc., “ on,” etc., “ to the said Douglas county, for the sum of $80 in the whole, which was the amount of taxes assessed and due and unpaid on said blocks,” etc.;. and is in strict conformity with the statutory form. The words i£in the whole” mean in this connection, not that the blocks were sold in gross, but that the amounts, as stated in the certificate, opposite each block, and for which they were sold, aggregated $80. It was not necessary to expressly recite that the blocks were sold separately, and, as it does not appear that they wore sold in gross, the deed is “ presumptive evidence of the regularity of all the proceedings, from the valuation of the land by the assessor up to and including the execution of the deed,” and hence was evidence that the several blocks were separately sold, as prescribed by law. Laws of 1859, ch. 22, sec. 25 (R. S. sec. 1176). The tax deed, when delivered, was perfect and passed or might pass the legal title. The section referred to provides that the deed “ may be recorded with like effect as other conveyances of land.” — 331 — We have not been referred to any statute, nor are we aware of any, that makes recording of the tax deed essential to a complete and valid conveyance, though important advantages may result from its registration, as is the case in respect to other conveyances. 2. The block in question was sold at the tax sale, September 13, 1859, to Douglas county, and the certificate of such sale was transferred to one Moore, January 19, 1870, and subsequently to Annette Relf, the respondent’s remote grantor, to whom the tax deed in question was issued January 3, 1876, and it was filed for record and recorded imperfectly, as it appears, January 7, 1876. The right to have a tax deed issued on the certificate was not barred by the six years statute of limitations (sec. 1, ch. 112, Laws of 1867, as amended and embodied in R. S. sec. 1182), for the reason that the county continued to own and hold the certificate until January 19, 1870; and the deed in question was issued and delivered within six years after the date of the assignment of the certificate to Moore. The acceptance by the county board, December 31, 1869, of Moore’s bid for the tax certificates owned by the county, did not amount to an assignment of them in prmenti, but amounted to an executory agreement to thereafter assign them. By the agreement, Moore was to pay the county twenty cents qn - the dollar on the face of the certificates, taxes, and redemption printing, and to deposit $200 with the clerk as a guaranty of good faith, and the certificates were to be examined and itemized by the clerk of the board,— that is to say, the amount to be paid for them'was tobe ascertained,' — -and the balance of the purchase price was to be paid, and the certificates thereafter assigned and delivered to Moore; and it appears that the transfer to him was not made until January 19, 1870. The tax deed in question was issued January 3, 1876, within six years after such assignment of the certificate; so that neither the limitation of six years — 332 — nor that of fifteen years, prescribed by the statute referred to, is applicable to the case, although the tax deed was not. lawfully recorded until after the period of fifteen years from and after the date of the tax sale. It is plain that sec. 32, ch. 22, Laws of 1859 (B. S. sec. 1181), does not prescribe any limitation in favor of or against tax certificates of sale. Its entire operation is plainly confined to tax deeds, and any other conclusion would not be within the legitimate limits of construction. 3. We do not think that the appellant’s contention that the right to a tax deed on the certificate in question had been lost by laches or abandonment is tenable. Without considering the question whether the common-law presumption of payment or redemption would not arise in such a case after the lapse of twenty years, or whether such presumption might not arise after long-continued adverse possession of the premises, we are clear that, independent of any such considerations, the evidence of abandonment or laches must be clear and decisive to have the effect contended for by appellant’s counsel. The certificate in question was a part of the property of Douglas county, and before eight years after its date had expired the statute (ch. 112, Laws of 1867) was enacted, inaugurating a new policy, by which limitations of six and fifteen years upon the issue of tax deeds on certificates of sale were prescribed. This act plainly contemplates that counties or municipal corporations might thereafter sell and assign any tax certificates they then owned, and that the right to have a tax deed issued on them should not be barred until six years after such assignment. It is conceded that the owner of the patent title has never redeemed, or offered to redeem, the premises, and he cannot point to any limitation that has extinguished his duty or liability to redeem or lose his land. There is no ground, we think, to impute laches or abandonment on the part of the county, such as — 333 — to operate to bar its rights; and it is clear that there has been no laches or evidence of abandonment on the part of its assignees. In Eaton v. North, 32 Wis. 303, a tax deed void on its face had been issued on a sale made twelve years previously, and no action had been _ taken by the claimant under it to obtain a valid deed until fifteen years after the date of the first deed; but it was held that his right to a valid deed had not been impaired or lost by lapse of time, and that there was no statute or common-law rule which could be applied, even by analogy, to cut off his rights. The policy and legislation of the several states on questions of taxation and the sale and conveyance of lands for taxes vary materially, and are necessarily of local application ; and though counsel for the appellant cited several Iowa decisions which seemed to sustain his contention on this point, for reasons already stated we must regard the question in this state as one not open for discussion. 4. Although the register of deeds did not properly record the tax deed of January 7, 18Y6, his duty to do so was of continuing obligation; and it is well settled that an omission to make proper entries in the general index at the time the deed is spread upon the record may be remedied after such recording by making the proper entries, and, when so made, the record will be good from that date, and it will not be necessary to again record the deed at length. Lombard v. Culbertson, 59 Wis. 442; Oconto Co. v. Jerrard, 46 Wis. 317. The insertion of the words “ See record ” in the index, under the column for description of the premises conveyed, was made by the register of deeds between 1882 and 1886; and the reference to the volume and page made the record complete and operative from the time of such insertion. St. Croix L. & L. Co. v. Ritchie, 73 Wis. 409; Hall v. Baker, 74 Wis. 118; Lander v. Bromley, 79 Wis. 372; S. & B. Ann. Stats, sec. 759a. 5. As the tax deed under which the respondent claims — 334 — title is fair on its face and was properly recorded more than three years before the commencement of this action, the appellant’s claim of titles was barred by the three years statute of limitations on the tax deed (E. S. sec. 1188); and the evidence offered by appellant to impeach the tax deed, showing defects and irregularities in the tax proceedings prior to its execution, was properly excluded. The respondent’s title under the tax deed, according to repeated decisions of this court, was absolute and conclusive, and he was lawfully entitled to the money paid into court under the condemnation proceedings. By the Court.— The order of the circuit court is affirmed.