Austin v. Holt , 32 Wis. 478 ( 1873 )

Dixoít, 0. J.

The description of the lands as lying and being in the county of Oconto, when in truth they were situate in the county of Shawano, was not, under the circumstances, a fatal misdescription or error even in a tax deed. The lands had been in Oconto county. They were in that county when the taxes were assessed, and properly assessed, as is fully conceded in the case. At the time of assessment, and in the assessment roll and delinquent return, they were correctly described as in that county. But the county of Shawano was set off and organized after the return and before the sale by the county treasurer, and before the execution of the tax deed. Was the treasurer to depart from or change the description as contained in the assessment roll and return, when he made the sale ? Or was the clerk of the board of supervisors to depart from or change the description as contained in the certificate of sale, when he executed the deed? It appears to this court that such proceedings on the part of those officers would have been both unnecessary and unauthorized, or, if not unauthorized, then certainly unnecessary. If it was competent for the treasurer to make the sale at all, or for the clerk of the board to execute the deed, then it was proper for the former to describe the lands as he found them in the assessment roll and return, and the latter as he found them in the certificate of sale. Some additional words as “ in the county of Oconto at the time of assessment and return, but now in the county of Shawano,” might not bare vitiated, but they were not necessary. The certificate and deed had relation to and were founded on the roll and return ; and it was enough that they pursued the description correctly given in the roll and return. The failure to designate the lands as within the new county of Shawano would mislead no one. Counties are divided and organized by public law, and every person was bound to know the law and to take notice of the formation of the new county, and when it took place, and what part of the territory of the old county was included within the new one. The courts take such notice, as all persons must, and being informed by the deed of the date of sale and consequently of assessment, it is seen and known at once that the lands were in Oconto county at the time of assessment, and were therefore correctly so described in the roll and return made to the treasurer of that county. This objection merits no further consideration, and will receive none, except we remark that the decisions heretofore made by this court and cited by counsel are not inconsistent with the views here expressed.

The next objection is, that the treasurer of Oconto county had' no authority to sell, nor the clerk of the board to execute the deed, after the separation took place and the county of Shawano was formed. It is said that no such sale could be made or deed be executed, unless there existed express statutory authority for so doing. The argument of counsel for the plaintiff, and their references, are enough upon this point. We fully agree with them that such express statutory authority did exist, and will be found in section one, two, three, sixteen, eighteen and twenty-five of chapter 22, Laws of 1859. 1 Tay. Stats., ch. 18, §§ 131, 132, 133, 153, 160 and 161. The statute ^imperative that all lands returned to the county treasurer, and upon which the taxes shall not be paid within the time limited, shall be subject to sale, and that the treasurer shall advertise and sell all such lands. It provides how any lands sold, may be redeemed, and makes it the duty of the clerk of the board to publish a list of all unredeemed lands, specifying the time wben tbe period for redemption will expire, and also to execute and deliver a deed of any land sold for taxes wbicb shall not be redeemed in the manner provided by law. And, as counsel observe, it is also noticeable that there are no words in the statute requiring the sale, conveyance or other acts, after the assessment and return, to be done within the county where the lands lie. This objection, too, must be overruled.

Another objection taken is, that the word “ several,” given in parenthesis in the statutory form, is omitted before the word “ tracts ” in the tax deed. We fail to appreciate the learning and ingenuity of counsel in support of this point, and must say that we look upon them as too nice and hypercritical to constitute the basis of sound judgment. That the word “several ” might have been very properly used as the writer of the form did use it, is no doubt true, but that it has any such significance, or was intended to have, as that its omission shall avoid a deed otherwise valid, it is impossible for us for a moment to believe. Its use in the form was probably quite as much by accident as by any particular design, as persons engaged in writing often insert or omit a word, and its accidental omission cannot be held to vitiate or avoid the deed. The views of counsel, as we understand them, are somewhat akin to those which were unsuccessfully urged against the tax deed in Orton v. Noonan, 25 Wis., 672.

Another and the last objection taken to the deed is, the mis-recital contained in it, that Hiram Johnson, the grantee, was the purchaser at the tax sale, whereas it appears on the face of the deed that he was not such purchaser, but was the assignee of the certificates of sale. This was a harmless mistake, and one which corrected itself on the face of the instrument. This objection is no more tenable than the others.

The several points of counsel made, and which proceed upon the supposition that a recorded tax deed valid on its face does not draw after it constructive possession of unoccupied lands, are settled and determined by tbe recent decision in Lawrence v. Kenney, ante, p. 281.

Tbe other questions presented by tbe record are as to tbe time of the delivery of the quitclaim deed from Johnson to the plaintiff, and whether Sargent had such adverse possession of the land under claim of title in himself, at the time of cutting and removing the logs and timber from it, as will prevent the plaintiff from maintaining this action to recover the value of the logs.

Upon the subject of the time of the delivery of the quitclaim deed the testimony was not clear, but there was enough, we thinlc, to carry the question to the jury whether that deed was in fact delivered to the plaintiff after the tax deed was issued to Johnson. The instructions of the court upon this point were very clear and explicit, and such as to lead to the fairest and most intelligent consideration of it by the jury. We do not think their verdict can be disturbed.

Adverse possession of land, such as to prevent the trae owner from maintaining trover or replevin for trees, timber or other things severed and taken from it, should be clearly established. Such possession should be of such a kind and so long continued as to be clearly distinguishable from that which the claimant has while engaged in the mere act of committing the waste or severing and removing the property from the freehold. It should be something different from that which every trespasser has and must have in order to commit the trespass. If it be only the possession enjoyed by the trespasser, and taken and held by him for the very purpose, and that alone, of committing the trespass, it is not an adverse possession within the meaning of the rale under consideration. The possession of Sargent was of the latter kind, and was not sufficient to defeat this action. He built his shanties and took possession for the sole purpose of cutting and carrying off the timber, and his possession was incidental, and subsidiary merely to that object. He quit the possession the moment that object was accomplished. It matters not, therefore, that it took him some weeks or months to accomplish the object; he was a mere trespasser nevertheless, and so remained from first to last.

On consideration of the whole case, therefore, we find no error in it, and are of the opinion that the judgment should be affirmed.

By the Court.— Judgment affirmed.