Chippewa River Land Co. v. J. L. Gates Land Co.

The following opinion was filed March 21, 1903: Winslow, J. The tax deeds under which the plaintiff claims title were issued prior to the defendant’s tax deeds, and, if they were properly indexed and recorded, it is admitted that the statute of limitations has run in their favor. The respondent claims, however, that there was no proof that they were indexed as required by sec. 759, R. S. 1878, and hence that they cannot be held to have ever been recorded. This is the first question to be considered. A tax deed must have been properly indexed, or it is not deemed to have been recorded; and, until it is so recorded, ejectment cannot be maintained thereon. Hewitt v. Week, 59 Wis. 444, 18 N. W. 417; Hiles v. Atlee, 80 Wis. 219, 49 N. W. 816. The proof on the subject consisted simply of the introduction of the original deeds, each of which had indorsed thereon a certificate substantially as follows: “Register’s Office, Chippewa County. “Received for record the 20th day of May, 1899, at 10:15 a. m., and recorded in Vol. 5 of Deeds, on page 252. “W. J. DaltoN, “Register.” Is this certificate sufficient proof, in the absence of any proof to the contrary, that the tax deed upon which it is indorsed was indexed in the general index, as required by sec. 759, R. S. 1878? We think it is. The statute nowhere requires that the fact of indexing is to be certified or indorsed upon the deed, but it does require that the entry in the general index shall be made immediately upon the receipt of the instrument “in the order of time in which it was received, the day, hour and minute of reception, and the same shall be con — 350 — sidered as recorded at the time so noted.” Sec. 759, supra. Sec. 758 provides that it shall be the .duty of the register of deeds “to indorse upon each instrument or writing received by him for record, his certificate of the time when it was received, specifying the day, hour and minute of reception and the volume and page where the same is recorded, which shall be evidence of such facts.” Now, it is argued that under this provision the certificate upon the deed is only evidence of the time of reception of the deed, and of the fact that it has been recorded at length in a certain book. If it be granted that this is the proper meaning of the statute, still the result claimed does not follow. It is made the duty of the register to index the instrument immediately upon its receipt. This act is the very first act to be done, and must necessarily precede the recording at length of the instrument. It is a universal presumption that a public officer performs his duty as the statute requires; hence when it appears by due certificate that the register has received the instruments, and recorded the same at length in the records, it must necessarily be presumed that he has performed the duty which the statute imposes upon him preceding the recording at length, namely, the duty of making the proper entries in the general index. This is but a reasonable and fair presumption, and one which, we think, has been uniformly acted upon by trial courts without question. If, as matter of fact, the register of deeds has neglected his. duty, and made no entry in the general index, that fact can be easily shown by proof. Until the introduction of such proof, the presumption of due performance of official duty arising from the certificate showing the receipt and recording of the instrument at length must prevail. This conclusion disposes of the only objection made to the respondent’s title, and makes it necessary to consider the validity of the appellant’s tax deeds. The statute of limitations not having run upon these deeds at the time of — 351 — tbe commencement of the action, the record of the tax proceedings was introduced for the purpose of showing alleged defects therein, rendering the deeds invalid. These alleged defects will be considered. 1. Sec. 1130, R. S. 1878, requires the county treasurer on the first Monday in April in each year to make out a statement of all lands upon which the taxes remain unpaid, with añ accompanying notice of the sale thereof on the third Tuesday in May following, and cause such statement and notice to be published once in each week for four successive weeks prior to the day of sale, and copies thereof to be posted at least four weeks previous to the day of sale in at least four public places in the county Sec. 1141. R. S. 1878, requires the county treasurer, immediately after the sale, to deposit with the county clerk all affidavits, notices, and papers relating to the sale, together with a statement showing the lands sold, and to whom, ’ and for what amount. It appears that no original statement and notice such as is described in sec. 1130, supra,, was kept by the treasurer or filed in his office, and this is claimed to be fatal to the validity of the sale. It appears, however, that the treasurer in each case made out a notice substantially as follows: “State of Wisconsin, County of Ohippewa-ss.: “Notice is hereby given that so much of each tract or parcel of land in the annexed and following statement as may be necessary therefor, will, on the third Tuesday of May A. D. 189- being the-day of said month and the next succeeding days, be sold by me at public auction at the county treasurer’s office in the courthouse in the city of Chippewa Falls in said county of Chippewa for the payment of taxes, interest and charges due thereon for the year 189-. Said sale to commence at nine o’clock sharp in the forenoon. “Dated at the Co. Treasurer’s office in the city of Chippewa Falls in said county of Chippewa, the - day of April, 189- “ELeNby Goetz, “Co. Treas.” — 352 — It also appears that attached to this notice there was a list of the parcels of land to be sold, headed as follows, but not signed by the treasurer: “Statement' of all lands in the county of Chippewa in the state of Wisconsin, except public lands held on contract and lands mortgaged to the state upon which the taxes for the year 189- have been returned as delinquent and which remain unpaid on the first Monday in April, A. D. 189- being the-— day of said month; that is to say [here follows a statement of the several parcels of land].” It is claimed by the respondent that this statement and notice is in the nature of a public record, and that, while there is no statute specifically requiring an original to be kept on file in the county treasurer’s office, still it is manifestly essential that there should be such an original preserved and on file. We can hardly agree with this contention. The manifest object and purpose of the section is to give notice of the sale to the public and to property owners by public advertisement. To hold that, after the notice had been fully given in every respect as required by the law, the sale must be held invalid because the original of the notice had not been kept by the treasurer in his office, would be to sacrifice substance to shadow. The statute simply says that the treasurer shall "make out the statement and notice, “and cause such statement and notice to be published,” and “cause to be posted up copies of such statement and notice.” The natural meaning of this would seem to be that the original statement and notice is to be sent to the newspapers for publication. Certain it is that, if the notice and statement be not published, the fact that an original was carefully preserved in the treasurer’s office would not save the sale. Again, both the publication and the posting are required to be proven by the filing of affidavits with the treasurer. These affidavits must necessarily contain copies of the notice and statement, so that here are preserved the very notices and statements which are effective. In view of their careful preservation, the filing of an original which — 353 — can exit no figure as notice if it differ from the notice published is unimportant, and, in the absence of a specific requirement to that effect, we bold it unnecessary. 2. It is claimed that the affidavits of publication of the notice and statement are insufficient. It appears that the affidavits simply state that “the notice of which the annexed is a printed copy taken from said newspaper has been printed,” etc. Attached to the affidavit is a printed copy of the notice and accompanying statement. Tbe contention is that there are two separate papers to be published — a “notice” and a “statement” — and that the affidavits only show the publication of the notice. The argument is not without its force, yet we think it is untenable. As will be seen by reference to the notice itself, the statement is really incorporated into the notice by the terms of the notice. It states that so much of each tract of land “in the annexed and following statement as may be necessary” will be sold. In legal effect, this is equivalent to stating in the notice itself the description of each tract of land which is to be sold. We suppose that, if the statement of parcels were inserted in the body of the notice, it would not be contended by any one that an affidavit which stated that the notice was duly published was insufficient because it did not name the statement' specifically. The principle is well settled that one paper may, by apt reference and description, be incorporated into another, and become in legal effect a part thereof. Such we deem to be the case here. The statement became an integral part of the notice by apt reference, and the affidavits in question must be held, in reason, to mean that the entire notice, which, as we have seen, in legal effect includes the statement, was published. 3. The third objection which it seems necessary to consider is, however, far- more serious than those which we have already discussed. That objection is that at each of the tax sales the county treasurer sold each parcel of land for fifty cents in excess of the taxes, interest, and charges legally due — 354 — thereon at the time of the sale. It was stipulated in the case that the county treasurer’s statements show that the sums for which the lands were sold in each ease includes the sum returned by the town treasurer, with interest to the day of sale, also the sum of twenty-five cents for an advertising fee, and twenty-five cents additional, and that certificates were issued to purchasers for the aggregate of said sums, without any additional charge for the certificate fee provided for by sec. 1196, R. S. 1878. It is claimed that both of these charges of twenty-five cents are illegal — the first, because the printer was entitled to no fee; and the second, because the certificate fee is no part of the sum for which the lands are authorized to be sold. If, as matter of fact, the parcels were sold for fifty cents, or even twenty-five cents, per parcel, in excess of the sum authorized by law, the sale must be held void. Such an excess cannot be held trivial or unimportant. Barden v. Columbia Co. 33 Wis. 447, 14 Am. Rep. 762. It is not denied that the statute provides for a fee of twenty-five cents per parcel for the publication of the notice of sale, which may properly be included in the sum for which the land is sold; but the claim is that no such fee can be charged in this case, because the printer did not transmit to the county treasurer his affidavit of publication within six days after the last publication thereof, and hence, under sec. 1132, R. S. 1878, is not entitled to any fee. If the fact be as claimed, there can be no doubt that the charge is illegal, because the county certainly can collect no such fee of the taxpayer unless it is obliged to pay it to the printer. It appears, without dispute, that none of the affidavits were ever filed with the county treasurer, but were all filed with the county clerk. The respondent’s claim, however, is not based on this fact alone. 11 appears that the notices of sale were all published five times, but that the last publication was within the last week preceding the tax sale. If the fifth publication could be held to be the last legal publication, then the affidavits were filed within — 355 — six clays from the last publication; but .if, on the other hand, the first four publications are the legal publications, and the fifth mere surplusage, the affidavits were all filed more than six days after the last publication. We think it clear that the first four publications must be held to be the only legal publications of the notice. The notice must be published for four successive weeks prior to the day of sale. If the last four publications are to be reckoned as the legal publications, then the notice was only published three successive weeks, and a fraction over, before the day of sale. So it appears that the first four publications must be considered as the publications authorized by the' statute, and hence that the printer was entitled to no fee for the publication. Were this otherwise, however, it is impossible to see how the charge of twenty-five cents additional could be justified. It is said that this must be presumed to be for a certificate fee. The statute provides that the county treasurer shall receive a fee of twenty-five cents for each certificate of sale. R. S. 1878, sec. 1196. This certificate fee is to be paid by the person to whom the certificate is issued, and added to the sum for which the lands were sold, and included in the certificate issued. It is said in support of the course pursued here that, even if the sum is not to be included in the amount for which the land is sold, still there is no substantial wrong, because the certificate fee must be paid upon redemption. The trouble with this argument, however, is that the law does not require a certificate fee to be paid for each parcel sold, but only for each certificate issued, and that the statute contemplates that one certificate may include any number of parcels sold to the same person. Eeference to sec. 1140, R. S. 1878, which provides the form for certificates, shows that this is the case; and such, we think, is the practice in some localities. Therefore the certificate fee cannot properly be charged against each parcel as a part of the sum for which the parcel is sold. — 356 — These considerations demonstrate the invalidity of the tax deeds relied upon by the appellant, and the correctness of the judgment. By the Court. — Judgment affirmed. The appellant moved for a rehearing. The following opinion was filed June 18, 1903: