Zimmerman v. Turner ( 1867 )

Cole, J.

It is insisted tbat it does not appear from the record, what was tbe nature of the deed which was offered in evidence on tbe part of tbe plaintiff, and ruled out by the court. An examination of the bill of exceptions shows tbat tbis objection is well taken. It is stated in the bill of exceptions, tbat the plaintiff, to maintain the action, offered in evidence a deed of the premises mentioned in the complaint, given to the plaintiff by the county of Ozaukee and state of Wisconsin. the attestation clause of the deed is' given, from wbicb it appears tbat the deed was executed by the clerk of the county board of supervisors of Ozaukee county, “ pursuant to and in virtue of the authority in him vested by the statute,” for and “ in behalf of said state and of the county of Ozaukee.” Now, it might perhaps be inferred from tbis, tbat the deed in question was a tax deed. Yet, is the court at liberty to grope around and guess at the nature and character of tbis deed ? It seems to us not. It is said, non constat but the plaintiff offered in evidence a deed of property held by the clerk officially for either or both of the grantors; or by himself individually, either as a trust or for the non-payment of taxes, or as property owned by the county and state wbicb be was authorized by some statute to convey. the objection may appear rather hypercritical; and yet it is undoubtedly a most salutary rule to require the bill of exceptions to fairly raise the question upon wbicb the opinion of the court is desired. Had the bill of exceptions stated tbat the plaintiff offered in evidence a tax deed executed by the clerk of the board of supervisors in 1864, in accordance with the form prescribed in section 50, chap. 22, Laws of 1859, then the question whether tbat deed should have the private as well as the official seal of the clerk would have been presented for our consideration. But we can only say inferentially tbat tbis question is involved in the case. We do'not think it too much to require the bill of exceptions to fairly present the question to be decided. We cannot assume, therefore, tbat the deed offered by the plaintiff and ruled out was a tax deed.

By the Court. — Tbe judgment of tbe circuit court is affirmed.