Haseltine v. Donahue , 42 Wis. 576 ( 1877 )

LyoN, J.

It is not denied that the absolute title in fee to the lands from which the timber in question was taken, was vested by the tax deed in the county of Marathon; and the controlling question in the case is, whether the quit-claim deeds passed such title to the plaintiff Kaseltvne. The learned counsel for the defendants maintains, with much ingenuity of arg ument, that the question must be answered in the negative, on either of two grounds: 1. That the clerk of the board of supervisors had no authority to execute such deeds; or 2. That they are not executed as required by statute.

There are two statutes, under either of which a valid conveyance of the land may be made on behalf of the county. These are sec. 7, ch. 18, B. S., and sec. 12, ch. 22, Laws of 1859, as amended by ch. 145, Laws of 1867. These statutes are as follows:

“ Sec. 7. The property of the several counties shall be held by the clerks of the boards of supervisors of such counties, in the name of the county, and shall be disposed of by the said clerks, under the direction of the said county board. The board of supervisors of each county may, by their order of record, direct the clerk of said board to sell and convey any real estate 'of their county, not donated for any special purpose; and all deeds made on behalf of said county, by the clerk of the board of supervisors of said county, under his hand and official seal, and duly acknowledged by him, shall be sufficient to convey all the rights, title, interest and estate, which the county may then have in and to the lands so conveyed.” (Tay. Stats., 292, §?•)

“ Sec. 12. The board of supervisors of any county may, by an order to be entered in the records, authorize the clerk of their board, or the county treasurer of their county, to sell and assign the tax certificates issued for lands bid off for such county, and also to sell and convey by deed, duly executed and delivered by such clerk or treasurer under his hand and seal for such county, any such lands for which a deed of release has been executed to the same, as provided in the preceding section.” (Tay. Stats., 1-30, § 147.)

"We think the clerk had ample authority from the board of supervisors to execute the quit-claim deeds. The three orders of 1862, 1869 and 1870, are in pari materia, and should be construed together; and, so construed, we cannot doubt they confer power on the clerk, subject to the terms and conditions therein expressed, to convey any lands of the county held under tax deeds, whether the tax deeds were issued before or after the orders were made. In other words, it is a general power, applicable to all lands so held by the county, no matter when acquired, and will continue in force until revoked by the authority which granted it.

As to the mode of execution of the quit-claim deeds, we think they are executed in substantial compliance with sec. 7, above quoted. In substance and effect, they are “ made on behalf of the county by the clerk of the board of supervisors thereof, under his hand and official seal, and duly acknowledged by him;” and he had the requisite authority to make and execute them. It is quite immaterial that the pronoun its, instead of his, is employed in the testatum clauses of the deeds. This informality (if it is an informality) is of no importance. Neither was it necessary to recite in the deeds the authority of the clerk to execute them. Moreover, if the private seal of the clerk is essential to the validity of the deeds, it must be held, on the authority of Williams v. Starr, 5 Wis., 534, that these deeds are sealed with the private seal of the clerk. We have no difficulty in holding that the quit-claim deeds were effectual to pass the title to the lands described therein, to the plaintiff Haseltine.

The bill of exceptions shows affirmatively that it does not contain all of the testimony; and the only exception of the defendant preserved therein is to the ruling of the court granting the nonsuit. For the reason that we have not all of the testimony before us, it is argued that the exception is unavailable — that there may have been evidence which rendered the nonsuit entirely proper even though the quit-claim deeds are in due form and were executed pursuant to proper authority.

We think this point is not well taken. The deeds were at first received in evidence, but were subsequently ruled out on the express ground that they were insufficient. The nonsuit was the necessary result of the ruling. We understand the ruling of the court to have been, that the deeds were insufficient on their face to convey any title to the lands. Such is the plain, obvious import of the term insufficiency, as used by the learned circuit judge. Such being the ruling, and that being the main question sought to be raised by the appeal, it was only necessary to preserve enough of the evidence to show the materiality of the deeds, and that the clerk had authority to execute them. Had the nonsuit been granted generally, that is, without any statement in the record showing the grounds thereof, a very different question would be presented. Many of the cases cited on bbhalf of the defendants would then be applicable.

Where, as in this case, it is desired to review a single question of law involved in the rulings of the circuit court, it is worse than useless to stuff a bill of exceptions with all the details of the trial, which have no bearing upon that question. As an example, take the present case. There was probably a large amount of testimony given on the trial as to the amount and value of the timber in controversy. None of this testimony has the slightest bearing upon the questions raised on this appeal. Had it been inserted in the bill of exceptions, the costs of the litigation would have been increased, and the time of the court consumed to no purpose whatever.

The plaintiffs desired the opinion of this court on the sufficiency of the quit-claim deeds, and, to obtain that opinion, they preserved the deeds in” the bull of exceptions, with the ruling of the circuit court that they were insufficient, and enough of the evidence to show the materiality of the deeds to their case. This is all that is necessary, and hence, all that the rules of correct practice require.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.