McIntosh v. Marathon Land Co.

WiNslow, J. The defendant’s contentions were three in number: first, that the alleged will of Henry Walton was not sufficiently certified to show that it had ever been probated, and that neither it nor the deed of the alleged executrix was admissible in evidence, nor sufficient, if admissible, to convey any title; second, that the record of the deed of the N. E. J of the S. W. \ of section 19 was not admissible in evidence as a deed of any part of section 17, notwithstanding the appearance of the figure “7” immediately above the figure “9;” and, third, that the documentary evidence introduced as tending to show the payment or redemption of the taxes upon which the tax deeds to Marathon county were based was inadmissible, and does not prove such payment or redemption. 1. Doubtless the defendant is correct in its contention that the plaintiff cannot maintain an action to quiet title under sec. 3186, Stats. 1898, unless he proves that he has legal title to the land, or owns a valid lien or incumbrance thereon. This conclusion follows necessarily from the plain wording of the section, which only grants the right to bring the action to a person “ having legal title to land,” or “ being the owner and holder-of any lien or incumbrance on land.” If, therefore, the probate of the alleged will of Henry Walton was not sufficiently proven by the papers offered in evidence, or if the deed from the executrix was not admissible, the plaintiff’s proof of title failed, and he cannot recover. By sec. 2295, Stats. 1898, it is provided in substance that, when a will devising lands in this state has been duly probated in any other state or territory, a duly authenticated copy of such will may be recorded in the office of the register of deeds of any county in which such lands are situated, and shall then have the same effect to pass title to such — 303 — lands as if probated in this state, and that the record of such copy shall be presumptive evidence of the authority of any person authorized by such will to convey or dispose of such lands. In the case of Wells, Fargo & Co. v. Walsh, 88 Wis. 534, this section was construed, and it was held that, where its terms were complied with, the title to property devised in trust by the foreign will passed to the trustee. We are unable to see any defect iju the logic of that case, nor do we perceive any reason for now reviewing it. It is claimed, however, that this section does not stand alone, but must be construed with sec. 3261, Stats. 1898, which provides that, upon the filing of an authenticated copy of the original appointment of a foreign executor or administrator in the county court, be may exercise any power over the estate, including sales or assignments of the same, which an executor or administrator duly appointed by the proper court of this state can exercise. It is entirely apparent that the tivo sections named are independent sections, intended to cover different situations. Sec. 2295 is intended to cover cases where, by the terms of the will, lands are devised, or authority given to convey, such as the case now before us, while sec. 3261 is intended to provide for cases where the executor or administrator must-obtain judicial authority to .sell or convey lands. The will in question here not only gave to Sophia Walton all the real property of the testator, wherever situate, but also appointed her as executrix, and authorized her to sell such real estate and execute and deliver deeds thereof in fee simple to the purchasers. The case therefore comes clearly within the provisions of sec. 2295, supra; and if the papers attached to the recorded copy show that it was duly admitted to probate by the proper court of Pennsylvania, and are duly authenticated, then it was entitled to be recorded in the register’s office of Marathon county, and when so recorded must have the effect provided by the section named. — 304 — There is no contention made that the authentication is in any respect defective, but it is said that there is no order or judgment admitting the will to probate. It is true that there does not appear in the record any formal order admitting the will to probate, such as is usually made in the probate courts of this state; but it appears by a decision of the supreme court of Pennsylvania, which was introduced in evidence by the plaintiff (Holliday v. Ward, 19 Pa. St. 485), as well as by the testimony of a member of the Pennsylvania bar, that a formal decree .of probate is not usual in that state, and that the papers here presented would be admitted in evidence in any court of Pennsylvania as proving that the will was properly proven and admitted to probate. Such being its effect in the courts of Pennsylvania, such must be its effect in the courts of Wisconsin, under sec. 1, art. IV, of the federal constitution. Parker v. Stoughton M. Co, 91 Wis. 174. It follows that the appellant’s first contention cannot be sustained. 2. As to the second contention, however, we can arrive at no conclusion except that the plaintiff’s title was not proven. This contention involved simply the title to one tract of forty acres of land in section 17. One of the deeds in the chain of title, and which was absolutely essential to the plaintiff’s title, described the land conveyed or attempted to be conveyed as being in section “ 19.” Respondent claims that this was evidently a mistake, and that section 17 was intended, principally because upon the record of the deed a small and faint figure “ 7 ” appears just above the “ 9.” The “ 9,” however, is not erased, nor in any way obliterated. It remains just as originally written. It seems probable that it was an error, but there is really nothing to show it. Had the “ 9 ” been partially erased or obliterated, and the “ 7 ” written over the erasure, it might, perhaps, be presumed that the recording officer had made a mistake in copying the deed into the record, and afterwards corrected it to — 305 — comply with the original deed; but such is not the case. 2 Devlin, Deeds (2d ed.), § 698. -There is no other deed or paper in evidence, signed by the grantor in the deed in question, which tends to show that section 17 was intended; nor is there anything on the face of the deed which demonstrates that the record is erroneous. Upon the whole case, we think that we should be deciding without evidence if we were to hold that section 17 was intended, where section 19 is plainly written. As to this forty acres, therefore, the plaintiff’s title is not proven, and he cannot recover. 3. As to the ancient tax deeds held by Marathon county upon a part of the lands in question, the situation and proof was this: The defendant offered in evidence the record of the tax deeds covering, respectively, the S. W. \ of section 17 and the N. W. J of section 20 in the town of Texas, both being issued for the taxes of 1863 upon the sale of 1864; also the record of a tax deed covering the N. of the S. E. ¿ of section 5, issued for the tax of 1878, sale of 1879. In order to defeat the two first-named deeds, the plaintiff offered the tax roll of the town of Texas, which was produced and identified by the county clerk, in which appears an entry opposite each of the descriptions in the column marked “Eemarks,” “Paid April 15, ’64.” These entries were objected to as insufficient to show payment, and as incompetent. We do not perceive in what respect the entries were either insufficient or incompetent. It was the duty of the town treasurer to note the payment of the taxes upon the tax roll, if paid to him» Sec. 1095, Stats. 1898. The tax roll itself is made by the statute presumptive evidence of the facts stated in it. Sec. 4162, Stats. 1898. The entries upon the roll must be held as competent and sufficient evidence to prove the payment of the taxes named. As to the N. ½ of the S. E. ¼ of section 5, the plaintiff offered the stub receipt book of the town for the year 1878, in which appeared a stub receipt, signed by the town treas — 306 — urer, showing payment of the taxes upon said land for 1818. This, also, was objected to as incompetent; and the case of Pier v. Prouty, 67 Wis. 218, is relied upon to support the objection. By sec. 1095, Stats. 1898, it is made the duty of the town treasurer to make a duplicate stub receipt whenever he receives payment of any taxes; and by sec. 1096, Stats. 1898, he is required to compare the stub receipt book with the tax roll, and return it with the tax roll to the county treasurer. Sec. 1096 further provides that such stub book shall have the same effect as evidence as the original receipt. Under these sections there seems no room to doubt bqt that the stub receipt was competent and sufficient evidence Of the payment of the tax. While it was said in Pier v. Prouty, supra, that such stub book was incompetent evidence, it seems very clear that sec. 1096 was not called to the attention of the court, and was not in mind. It cannot be considered as controlling, in the face of the express provisions of the statute. The conclusion reached as to the three ancient tax deeds held by the county, is that the evidence sufficiently shows that the taxes were all paid, and hence that the deeds were void. As to the two parcels of land in the town of Texas, the plaintiff also offered in evidence certain entries in the county clerk’s sales book of 1864, opposite the descriptions of said parcels, to the effect that the taxes thereon were redeemed by Henry Walton June 14, 1869. These entries were objected to as incompetent evidence, and we think they were clearly incompetent. They were made, as appears on their face, more than a year after tax deeds had been issued and recorded, and when no redemption could be made. No officer being empowered to receive redemption moneys at that time, it seems plain that no entry purporting to show such a receipt could be admissible. By the Court.— As to the N. E. £ of the S. W. £ of section 17 the judgment is reversed, and as to the remainder — 307 — of the judgment the same is affirmed, and the action is remanded with directions to modify the judgment of the circuit court in accordance herewith. The appellant will recover costs to be taxed, except that no printing will be allowed. . .