Bemis v. Weege , 67 Wis. 435 ( 1886 )

Cassoday, J.

“ When any lands upon which the county holds a tax certificate shall not be redeemed as provided by law, the county clerk shall execute to the county, in his name of office, a deed therefor, witnessed, sealed, and acknowledged and in like form as deeds to individuals; and such deeds shall have the same force and effect as deeds executed by such clerk to individuals for lands sold for the nonpayment of taxes, but no such deed shall be issued until the county board shall, by resolution, order the same.” Sec. 1194, R. S. (sec. 11, ch. 22, Laws of 1859). “Such deed, duly witnessed and acknowledged, shall be presumptive evidence of the regularity of all the proceedings, from the valuation of the land by the assessor up to cmd in-ckidrng the execution of the deed, and may be recorded with like effect as other conveyances of land.” Sec. 1176, R. S. (sec. 25, oh. 22, Laws of 1859); Hewitt v. Week, 59 Wis. 447. Such tax deed to an individual, being presumptive evidence of the regularity of all proceedings up to and including the execution of the deed, necessarily includes the authority of the clerk to so execute the deed. This being so, a tax deed from the state and county to the county must have “ the same force and effect,” for it is so stated in sec. 1194, supra/ and hence such presumptive evidence must include the authority of such clerk to execute such deed, which, in the absence of evidence to the contrary, will be presumed to have been given by resolution ordered by the county board as therein provided. This should especially be so, since the authority need not be especially given for the execution of each particular deed, but may be general and continuous, as held in Mead v. Nelson, 52 Wis. 405, 406.

The tax deed, being regular upon its face, was properly admitted in evidence, and vested the title in the county. But while such tax deed was presumptive evidence of the regularity of all proceedings up to and including the execution of such deed, still it was not evidence of authority on the part of the county clerk to subsequently execute a quitclaim deed of the same land. “ The powers of a county, as a body corporate, can only be exercised by the county board thereof, or in pursuance of a resolution or ordinance by them adopted.” Sec. 652, E. S. “ The county board may, by resolution or ordinance, direct the county clerk to sell and convey any real estate of the county not donated' and required to be held for a special purpose; and all deeds made in pursuance thereof on behalf of the county by the county clerk, under his hand and the county seal, and áe-knowledged by him, shall convey all the right, title, interest, and estate which the county may then have in and t© the land so conveyed.” Sec. 653. The land in question had not been donated and was not held for a special purpose, and hence could only be conveyed in pursuance of authority given by the county board. This last section of the statute declares the effect of such deed when so executed and acknowledged in pursuance of such direction of the county board, but does not make such deed presumptive evidence of such authority. In the absence of such statute ho such,presumption can be indulged. Varick v. Tallman, 2 Barb. 113; Hill v. Draper, 10 Barb. 454; Beekman v. Bigham, 5 N. Y. 366; Stanton v. Ellis, 12 N. Y. 515. The clerk had no personal interest in the lands. He could only act as agent for the county, and then only after being authorized. If the clerk had authority to execute and deliver the quitclaim deed from the county to the plaintiff, it should have been proved upon the trial. As it was not, the plaintiff failed to establish his chain of title, regardless of the question whether the statute had run against the tax deed.

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