Iverslie v. Spaulding , 32 Wis. 394 ( 1873 )

Cole, J.

It is conceded by tbe counsel for tbe plaintiff that tbe affidavit of tbe county treasurer of tbe posting of a statement of tbe returned delinquent lands and notice of sale was defective. Tbe law required tbe treasurer to cause tbe notice of sale, with such statement, to be published in some newspaper as therein designated (sec. 133, ch. 18, Tay. Stats., p. 427), and also, at least four weeks previous to tbe day of sale, to post up copies of said statement and notice in four public places in tbe county, one of which copies should be posted up in some conspicuous place in bis office. Tbe affidavit fails to show that this was done, and tbe tax deed therefore was invalid within tbe decision of Jarvis v. Silliman, 21 Wis., 600. But in this case tbe plaintiff offered to prove by tbe county treasurer -who made tbe sale, that be did in fact post four notices prior to tbe sale, three in tbe county, and one in the most conspicuous place in bis office, as tbe law directs. And the only material question in tbe case is, whether tbe court was right in excluding this evidence, and in bolding that it was not competent to prove by parol evidence that tbe officer complied with tbe law in regard to the posting of tbe notices.

We are inclined to think that tbe evidence offered was properly excluded. The law made it tbe duty of tbe county treasurer to make an affidavit of tbe posting of such statement and notice, which, together with the affidavit of tbe publication, was to be carefully preserved by him, and immediately after the close of tbe sale deposited in the office of tbe clerk of the board of supervisors of bis county. (Secs. 137 and 151, cb. 18, Tay. Stats.) These were to be filed and preserved by tbe clerk in bis office, and they were made prima facie evidence of the facts therein stated in all judicial proceedings. (Sec. 284.) Now the object of these provisions, in thus requiring these affidavits to be filed and preserved in the office of the clerk, doubtless was, to enable all persons interested in the matter to ascertain from them whether the law in regard to the posting and publication of notice of sale had been complied with. It was to perpetuate this evidence, and was intended to be for the common benefit of the purchaser and former owner. These affidavits were to remain on file, and take the place of a record which might be examined by any one to see what the proof was upon these points. And if this was the object of the statute in requiring these affidavits to be filed and preserved, then it is very clear that parol evidence would be inadmissible to cure defects in them, or aid them by showing that notices were actually posted according to law. The case seems to fall strictly within the reason and doctrine of the decisions to which we are referred on the brief of counsel, arising under statutes which require the tax proceedings to be recorded, and is governed by analogous principles. Those cases hold that the record alone can be resorted to for the purpose of determining whether the requirements of the statute have been complied with, and that the introduction of parol evidence in aid of the record thus required to be made, would defeat the policy of the law. Blackwell on Tax Titles, pp. 248-9, and authorities cited in note one.

The counsel for the plaintiff conceded that if the defect related to any matter which the statute required should be recorded, then parol evidence would be inadmissible to supply the omission. But we think the same rule should be applied to the affidavits, under the circumstances, that would apply to a statement which the law required should be recorded. For these affidavits constituted in fact a part of the record of the tax proceedings, and may have been examined by the original owner, who failed to redeem solely for the reason that he discovered there was no record evidence that any proper notice of sale bad been given by Ibe county treasurer. If tbis view of the statute be correct, then it is very manifest that the case of Adams v. Wright, 14 Wis., 408, has no application to it. Here the facts in respect to posting the notices of sale must be shown by the affidavit which the law requires shall be made and filed; there the notary could himself prove demand and notice of dishonor of the note. The affidavit is made the exclusive evidence of the facts in regard to posting the notices.

In this case the court directed the jury that the proof showed that the notice of sale upon which plaintiff’s tax deed issued was not given as required by law, and that therefore the deed was void. This direction was correct upon the evidence.

By the Court.— The judgment of the circuit court is affirmed.