Delaplaine v. Cook , 7 Wis. 44 ( 1859 )

By the Court,

Whiton, C. J.

As we desire to hear many of the questions which were discussed by counsel further argued, before we finally pass upon them, and as we are satisfied that in one respect the ruling of the court below was incorrect, we have concluded to reverse the judgment in this case and award a new trial. It will not be denied that many of the questions presented by this record are most important, not only to individuals, but to the State itself, which depends for its means to perform the functions of a government mainly upon the taxes which it annually levies upon the property of its citizens. Nor -will it be denied by any one conversant with the authorities, that they are entirely irreconcilable with each other as to the proper rule to be observed in the construction of our revenue laws, and the effect which ought to be given to tax deeds made under them. When the government, through its ministerial officers or agents, attempts by the formality of a tax sale to divest a person of his estate, it is said to be but the dictate of common reason and natural justice to require that not only the course prescribed by law shall be strictly pursued, but also that the evidence that this has been done shall be furnished by the party who sets up a title acquired by such a sale. In the exercise of its sovereign powers and acting in its own prescribed manner, the government executes the law, fixes its provisions, chooses the persons to execute it, and directs the path they shall follow, and it is insisted that while it is comparatively easy for the State or its agents to prove that certain things have been done, it is in many cases impossible for the owner, who has been deprived of his property, to prove that they have not been done, however certain the fact may be. On the other hand it is insisted, if not with equal, yet certainly with great force of reason, that the necessities of government require an adequate and regular supply oí revenue to keep up its efficient action, and that it is just that this public revenue be derived in proper proportions from all the taxable property in the State; that experience has shown that some enactments must be made for the purpose of securing the prompt payment of revenue, either by inducing owners of land to pay the taxes assessed upon them, or by inducing persons to attend sales for taxes and bid for the lands offered for sale ; that the greater the certainty the purchaser will acquire a good title the less land he will take and pay the taxes; that the purchaser pays his money to the government in good faith, supposing the officers have done their duty, but that whether they have or not, it is almost impossible for him to know; and that to require him to show, in an action against him, that the preliminary proceedings of these officers in listing and assessing the land, in levying and collecting the tax, and in the advertisement and sale of the property have been in strict conformity to law, is equivalent to defeating his title altogether. These and similar considerations have manifestly had their influence upon courts in interpreting the various acts of the legislature relating to the levying and collection of taxes, and in deciding what effect should be given to lax deeds when offered in evidence.

On the trial of this case in the court below, the plaintiff in error, in order to defeat a recovery, among other things offered in evidence two tax deeds, made and executed by the clerk of the board of supervisors of Dane county, to the plaintiff in error and Elisha Burdick, one bearing date the 21st day of April, 1851, on lots 7, and 8, in block 52 ; the other bearing date the 17th day of April, 1852, on lot six, in block 43'; these being the lots in controversy.

The defendant in error objected to the reading of these deeds in evidence, unless the party offering them should first show that all the proceedings by the taxing officer and collector, prior to the making the deeds, had been in all respects regular and according to law. The circuit court sustained the objection, holding that it was necessary for the plaintiff in error to show that 'every thing had been done which the statute makes essential to the validity of these tax deeds, this not being done, the deeds were excluded from the consideration of the jury. This ruling of the circuit court we deem erroneous.

Section 109 of chap. 15, R. S., 1849, in substance provides that when lands sold for taxes shall not be redeemed, the clerk of the board of supervisors of the county where the lands were sold, shall, after the expiration of the time prescribed by the law for the redemption thereof, on presentation to him of the certificate of sale, execute in the name of his county as clerk and under his hand and seal, to the purchaser, a deed of the land remaining unredeemed, and shall acknowledge the same, which deed shall vest in the grantee an absolute estate in fee simple in such lands; and the statute further declares that such deeds, duly witnessed and acknowledged, shall be prima facie evidence of the regularity of all proceedings^ from the valuation of the land by the assessors inclusive, up to the execution of the deed.

The meaning of this statute is plain and obvious. It makes the tax deed prima facie evidence of the regularity of all proceedings from the valuation of the land up to the execution of the deed. The deeds offered in evidence were executed under this enactment, were duly witnessed and acknowledged, and if this provision of law is to have any force whatever, they should have been received. For to devolve upon the party offering the tax deed in evidence, still the necessity of showing that all the proceedings of the officers prior to the making of the deed are regular and in strict conformity to law, is practically annulling this provision of the statute. By this law the deed is only made prima iacie evidence that the officers in listing and assessing the land» levying and collecting the tax, and returning, advertising and selling the property, have proceeded according to the statute* This presumption may be repelled by the legal evidence offered by the party attacking the tax deed. But the onus rests upon him, and not upon the purchaser. So the statute declares. The power of the legislature thus to change the burden of proof cannot be doubted. Whether it is a wholesome rule of evidence, it is not for the courts to determine* They must yield obedience to the legislative will clearly expressed in a constitutional enactment.

It follows from the conclusions to which we have arrived that the circuit court improperly rejected the tax deeds above mentioned, and for that reason there must be a new trial.

Judgment of the circuit court is reversed, and a new trial ordered.