Sprague v. Cœnen , 30 Wis. 209 ( 1872 )

LyoN, J.

This is an action to recover the possession of tñe southwest quarter of the east half - private land claim No. 40, on the east side of Fox river, at Green Bay. The plaintiff had judgment and the defendants appealed.

The objections taken upon the trial to the admission of the documentary testimony introduced by the plaintiff, were very numerous. It will serve no useful purpose to discuss these objections here, as none of them present any question which is not elementary, and of course perfectly well understood by the profession. Most of them are purely technical, and in our opinion, none of them are well taken. These objections were all o 'erruled by the circuit court, and the offered documents were read in evidence. We think that the court ruled correctly.

The history of the title of the land in controversy, is as follows: By virtue of an act of Congress, approved February 21st, 1823, (U. S. Statutes at large, vol. 3, p. 725,) a tract of land on the east side of Fox river, containing 640 acres, was confirmed by the commissioners mentioned in said act, to one Joseph Hoult. The confirmation bears date October 31st, 1823. Am. State Papers, vol. 4, p. 710. The action of the commissioners was duly ratified and confirmed by an act of Congress, approved April 17th, 1828, (4' Statutes at large, 260,) and pursuant to the above acts, the claim thus confirmed to Hoult was duly surveyed and platted, and was designated as “private claim No. 40, east side of Fox river,” and a patent therefor was duly issued to “ Joseph Ool alias Hoult,” by the United States, dated December 21st, 1829. After the passage of the act of 1828, and before such survey, Joseph Hoult conveyed the south•westerly half of the land thus confirmed to him, to H. B. Bre--vort; and after such survey, but before the patent was issued, said Hoult conyeyed tbe remaining balf of bis said claim to Louis Bouse. Bouse subsequently conveyed tbe same land to tbe said H. B. Brevort. On tbe 13tb day of July, 1840, Bre-vort conveyed to E. P. Seymour tbe east balf of tbe south half of said lot No. 40, (which includes the land in controversy in this action,) and Seymour subsequently conveyed tbe same to Eisk, who conveyed to tbe plaintiff. Tbe plaintiff was thus tbe absolute owner of such land when this action was commenced, unless bis title bad, in some manner, become divested.

Tbe defendants claim to be tbe owners of such land by virtue of two tax deeds thereof, issued to 'Edson Sherwood on sales for taxes of 1857 and 1864 respectively; and of another tax deed for tbe taxes of 1866, made to Casper Yasper; and of conveyances from tbe said grantees in such tax deeds to them. W e are therefore brought to consider tbe validity and effect of these tax deeds.

1. Before tbe sale of tbe land for tbe unpaid taxes of 1857, tbe same were paid to tbe treasurer of Brown County, by Mr. Eisk, who then owned tbe land. This is conclusively shown by tbe receipt therefor of tbe said treasurer, which was read in evidence. Such payments invalidate tbe tax deed issued upon tbe sales for those taxes. Tbe statute of limitations in force when such sale was made, is not applicable to this case, because it expressly excepts from its operation cases where tbe taxes have been paid. B. S. of 1849, cb. 15, sec. 128.

2. Tbe tax deed for the taxes of 1864, which was recorded less than three years before this action was commenced, is void on its face, in that it appears from the deed itself that the land was sold by the county treasurer to the county of Brown and Edson Sherwood. This could have been no other than a joint sale, and it was entirely unauthorized by law. A county is only authorized to purchase lands at a tax sale after the same have been twice offered at public sale and remain unsold; (Laws of 1859, cb. 22, sec. 9,) and it is not then authorized to purchase the same jointly with an individual. Tbe authority of the county (or any municipality,) to purchase land at a tax sale must be strictly pursued, and must be confined to the express provisions of the statute conferring the power, or the sale will be void. Knox v. Peterson, 21 Wis., 247. Here we find no law 'authorizing such joint purchase, and we must therefore bold that the tax deed issued upon the sale of 1865, for the taxes of 1864, is void.

There are other objections, some of which are probably fatal to tbe validity of such deed, which it is not necessary to discuss or decide.

8. There is a fatal defect in the county treasurer’s, notice of sale of the land in controversy, for the taxes of 1866. The same was assessed, returned, sold and conveyed as the “ south half of the east half ” of private claim No. 40, while the treasurer’s notice of sale describes only the “ south quarter of the east half,” of said claim. The notice failed to inform the owner and persons who might become bidders at the sale that the south half of the east half of the claim was to be offered at the sale. This information the law required the treasurer to give, and he failed to give it. Such failure necessarily invalidates the sale and the deed executed pursuant to the sale. This view relieves us from the necessity of examining the other objections taken to the deed.

Our conclusion is, that the finding of the court to the effect that the plaintiff was the owner in fee simple and entitled to the possession of the land described in the complaint, is correct, and that the judgment should be affirmed.

By the Court.— Judgment affirmed.