Head v. James , 13 Wis. 641 ( 1861 )

By the Court,

Cole, J.

This action is brought to restrain the clerk of the board of supervisors of Rock county from executing a tax deed. It is alleged in the complaint that the sale of the lands for taxes was unauthorized and void on two grounds: “ 1st. Because a number of pieces of land, owned by different persons, were assessed together as one piece; and 2d. Because the description of the land assessed was so uncertain and indefinite as to be void for uncertainty.” The respondent therefore asked that the execution and delivery of the tax deed should be restrained, since its existence would constitute a cloud upon the title of certain lands owned by him. The appellants demurred to the complaint, assigning several grounds of demurrer. We shall only notice one cause of demurrer, the fourth, which we think is well taken, and is fatal to the action. That ground of demurrer is, that the description of the land as set forth in the complaint, is so uncertain and indefinite, that the assessment of the tax and all proceedings to and including the sale and deed — if one were executed — are and would be utterly void, and create no cloud upon the title. This is the same objection, in substance, that is taken and relied on in the complaint, to invalidate the assessment and tax sale.

The respondent states in his complaint, that he is the owner of not to exceed twenty-five acres in the southeast quarter of section 4, town 4, range 12, in Rock county, describing tbe pieces of land wbicb be owns. It is also alleged tbe description of tbe lands, as assessed and sold, was as follows: “North and west part S. E. 1-4, Sec. 4, T. 4,-R. 12, acres 50, value $1,200.” Now we, tbink a deed conveying land by sucb a description, would be utterly void on its face for uncertainty. Where do these fifty acres lie? How many acres are to be taken off tbe north part, and bow many off tbe west part of tbe quarter section. It is impossible to tell. Tbe land could not be located, tbe description being radically defective. Ronkendorff vs. Taylor, 4 Peters, 349; Ballance vs. Forsyth, 13 How. (U. S.), 18; Raymond’s Lessee vs. Longworth, 14 id., 76; Lessee of Massie's Heirs vs. Long, 2 Ham. (O.), 412; Treon’s Lessee vs. Emerick, 6 id., 391; Lafferty’s Lessee vs. Byers, 5 id., 458; Lessee of Hannel vs. Smith, 15 Ohio, 134; Winkler vs. Higgins, 9 Ohio St., 599; Richardson vs. The State, 5 Blackf, 51; Spellman vs. Curtenius, 12 Ill., 409.

If then a deed, containing sucb a description of land conveyed, would be void on its face for uncertainty, can it be said to constitute a cloud upon tbe title of any real estate ? It seems to us that to state tbe proposition merely, is to answer it. Tbe deed is simply void because it conveys no land capable of being ascertained and located. Suppose a party should claim that certain land was conveyed by this description. Tbe answer to bis claim would be, that tbe deed conveyed nothing. We have never understood that a cloud upon a title to real estate was created by an instrument absolutely void upon its face. Sucb an instrument .could not by possibility prevent tbe sale of any land, or subject any one to any loss or inconvenience, for tbe simple reason that it would be of no more importance, than a piece of blank paper. See the case of Dean vs. The City of Madison, 9 Wis., 402, and authorities there cited; Cox vs. Clift, 2 Coms., 118; Scott vs. Onderdonk, 14 N. Y., 9; Ward vs. Dewey, 16 id., 519. A court of equity ought not to be called upon to restrain acts wbicb, when done, injure no one. If tbe clerk of tbe board of supervisors executes a deed con-ve-^n§ ^an<^ ^7 a^ove description, it will be a mere idle affecting no one, and harming no one.

For this reason we think the demurrer to the complaint should have been sustained.

The judgment of the circuit court should therefore be reversed, and the cause remanded for further proceedings in accordance with this decision.