Ward v. Walters , 63 Wis. 39 ( 1885 )

Tayloe, J.

Tbe learned counsel for tbe appellants contends tbat upon tbe facts found tbe defendant’s tax deed was void, and did not, therefore, divest tbe title of tbe appellants or convey any title to defendant, — • (1) because tbe tax deed was not acknowledged as required by law; and (2) because tbe affidavit of tbe publication and posting of tbe notices of tbe tax sale shows tbat tbe notices of tbe sale were not posted a sufficient length of time before tbe sale took place, and because it is defective in not. naming tbe public places in tbe county where such notices were posted.

We think tbe first objection is not well taken. The deed was properly executed by tbe deputy clerk in tbe name of tbe clerk. See Huey v. Van, Wie, 23 Wis. 618; Scheiber v. Kaehler, 49 Wis. 291. To us it seems very clear tbat tbe acknowledgment of tbe deed is sufficient to entitle it to record. Tbe object of an acknowledgment is to verify tbe fact tbat tbe person whose name is subscribed to tbe deed did in fact subscribe tbe same as bis deed; or, if be signed it as deputy or agent, tbat be subscribed it for bis principal. Tbe acknowledgment as found and set out in tbe findings of fact, it seems to us, shows conclusively tbat tbe party who makes tbe acknowledgment was tbe deputy clerk who executed tbe deed in tbe name of bis principal, and be acknowledges tbat be executed such deed as deputy clerk for tbe purposes mentioned therein. Tbe recitation in tbe acknowledgment is tbat John W. Miller, deputy county clerk, etc., appeared before tbe acknowledging officer, and tbat be acknowledged tbe execution of the deed by him as such county cleric, etc. Tbe words “as such county clerk” evidently mean “ as such deputy county clerk,” no other county clerk having been referred to by tbe officer in bis certificate of acknowledgment. "We tbiuk tbe form of the acknowledgment is entirely sufficient.

The objection to the sufficiency of the affidavit of posting the notices of the tax sale is, we think, well taken. The affidavit of such posting shows that they were first posted on the 16th day of April, 1878, and the finding of the court is that the tax sale was on the 14th day of May, 1878. Sec. 1130, R. S., amongst other things, provides “ that the treasurer shall also, at least four weeks previous to said day [meaning the day of sale], cause to be posted up copies of said statement and notice in at least four public places in said county,” etc. This court has repeatedly decided that a failure to post the notices for the time and in the form required by law, or to make and preserve the evidence of such posting in the manner required, renders the tax sale void, and that a deed issued upon such sale is also void, unless validated by the statute of limitations. Jarvis v. Silliman, 21 Wis. 599; Iverslie v. Spaulding, 32 Wis. 394; Eaton v. Lyman, 33 Wis. 34; Hilgers v. Quinney, 51 Wis. 62; Hebard v. Ashland Co. 55 Wis. 145, 148. These cases show that the requirements of this statute as to giving notice of the tax sale must be' strictly complied with, or the tax sale will be void.

Was a notice posted on the 16th of April posted at least four weeks before the 14th day of May thereafter? It is claimed by the learned counsel for the respondent that it was, and they cite sec. 4273, R. S., in support of their claim; but it will be seen by reading this section that it relates only to the publication of legal notices, and not to giving notices in any other way or manner. The posting of the notices required by sec. 1130 is not a publication of a legal notice within the meaning of sec. 4273; nor is the question affected by .sec. 34, ch. 140, R. S. 1858, which was in force at the time of posting the notices in this case. That section was originally a part of the Code enacted in 1856, and it was held by this court in Doty v. Menasha, 14 Wis. 77, that, in construing it, it must still be deemed a part of such Code, although made a part of ch. 140, B. S.; and if not construed as a part of the Code, then it would necessarily be construed as a part of ch. 140 alone, and have application only to matters contained in that chapter.

In the absence of any statutory provision governing the computation of time, the authorities are uniform that where an act is required to be done a certain number of days or weeks before a certain other day upon which another act is to be done, the day upon which the first act is to be done must be excluded from the computation, and the whole number of the days or weeks must intervene before the day fixed for doing the second act. Pitt v. Shew, 4 Barn. & Ald. 208; Mitchell v. Foster, 4 Perry & D. 150; Queen v. Justices of Shropshire, 8 Adol. & E. 173; Zouch v. Empsey, 4 Barn. & Ald. 522; Hardy v. Ryle, 9 Barn. & C. 603; Judd v. Fulton, 4 How. Pr. 298; Comm. Bank of Oswego v. Ives, 2 Hill, 355; Columbia Turnpike Road v. Haywood, 10 Wend. 422; Small v. Edrick, 5 Wend. 137; Rankin v. Woodworth, 3 Pa. (P. & W.), 48; Wood on Lim. 107, § 56.

The language of the statute above quoted brings the case within the rule laid down, by the authorities, and is a clear direction that four full weeks or twenty-eight days must intervene between the day of posting.the notices required and the day upon which the sale is to be made, and that a posting of such notices on the 16th day of April is not sufficient for a sale to be made on the 14th day of May thereafter. Within the rule the notices were not posted twenty-eight days before the day of sale. The posting of the notices being one day short of the time required by the statute, the sale is void. See Eaton v. Lymam, 33 Wis. 36; Collins v. Smith, 57 Wis. 286. This defect in the posting of the notices of sale renders the tax deed relied upon by the defendant as his source of title void, and the judgment should have been in favor of the plaintiff.

This defect of the notice was undoubtedly cured by the statute of limitations (sec. 1210é, E. S.), but as the defendant did not answer the statute as a defense to the plaintiff’s action he cannot avail himself of it on this trial. Clark v. Lincoln Co. 54 Wis. 578, 580; Wis. Cent. R. Co. v. Lincoln Co. 57 Wis. 137.

By the Oowrt.— The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment in favor of the appellant.