Myrick v. Kahle , 120 Wis. 57 ( 1903 )

SiebecKER, J.

Kespondents urge that appellant has failed to show sufficient grounds upon the record to entitle him to prosecute this action. It is not suggested in what respect •appellant’s record title to the property in question fails, aside from respondents’ tax title, unless it be in the description in the conveyances offered in evidence, as being so indefinite that it could not be ascei’tained whether the lots to which respondents claim title in this action are included. The lots described in the complaint were set off to appellant by judgment of court in a partition suit between him and the other owners November 27, 1858. Whatever interest he lost thereafter by tax sales and other conveyances was reconveyed to him by deed from Edwards and wife August 24, 1885. Such interest as Edwards may have acquired by the tax deed of 1891, on the tax sale of May, 1885, inured to the benefit of appellant under the covenant in the deed of August, 1885. This establishes sufficient title in appellant to maintain this ; action.

Tbe question, tben, arises, is tbe tax deed upon wbicb respondents rely for tbeir title valid? Sec. 1130, Stats. 1898, requires that tbe county treasurer shall at least four weeks previous to tbe day of sale cause to be posted up copies of a notice of sale and statement of tbe lands upon wbicb taxes, bave been returned as delinquent and remaining unpaid “in at least four public places in sucb county, one of wbicb shall be posted up in some conspicuous place in bis office.” Proof of sucb posting is required (sec. 1132, Id.) to be made by affidavit, wbicb affidavit, together with tbe affidavit of publication of sucb notice, shall be preserved by him, and deposited in the office of tbe county clerk, who shall file and preserve them (sec. 1141, Id.). Tbe object of these provisions is to preserve tbe evidence of these facts for tbe benefit and protection of interested parties. Tbe affidavit of posting notices for tbe tax sales in 1885 upon wbicb respondents’ deed is predicated does not state that they were posted in either tbe county or* city of La Crosse, and describes tbe places where sucb notices were in fact posted as “in a conspicuous place,” naming tbe offices of tbe treasurer and clerk of tbe city, and “one on tbe front door of St. Cloud Engine House,” “one on tbe southeast corner of Fourth and Jay streets,” and five others, one each on tbe corner of two streets designated by name and located as in tbe last above description. Tbe provision of the statute requiring an affidavit of tbe county treasurer showing that sucb notices were posted in at least “four public places” in tbe county is not fulfilled by making- and filing an affidavit wbicb omits to state in what county sucb posting was bad. This point was determined in Ramsay v. Hommel, 68 Wis. 12, 31 N. W. 271, wherein it was ruled' that sucb an affidavit, specifying tbe places as “four public-places in tbe village of Neillsville,” is not a showing that tbe posting was in four public places in tbe county, under sec. 1130, Stats. 1898. See, also, Morrow v. Lander, 77 Wis. 77, 45 N. W. 956. Tbe affidavit of posting recites that tbe several copies of notices “were posted in a conspicuous place” at the designated locations, but does not describe them as “public places.” Are the places described in their nature public places within the meaning of the law as defined in Hart v. Smith, 44 Wis. 213, and subsequent cases? What is a public place within the meaning of the statute as indicated in these decisions, resolves itself into a question partly of law and partly'of fact. We must therefore look to the places designated and described to answer it. The place of posting should be one accessible to persons as a public, and applied to such uses and purposes where the public resorts, and thereby make them open to public observation. The obvious intention of the statute being to give publicity of the time, place, and lands to be sold, and thereby induce persons to attend the sale. It seems clear that street corners are not ■necessarily “public places” within the requirement of the law. It is a matter of common knowledge that conspicuous places at many street' corners in cities are comparatively obscure, and secret places, and to post a notice of tax sale in a conspicuous place at such corners would most likely fail to attract observation and meet the public view. These irregularities and omissions in the affidavit offered in evidence render the sale and tax deed issued thereon ineffectual and void.

An affidavit Of the former city treasurer, made on the day before the trial of this action, for the purpose of complying with the statute in making proof of posting notices, was improperly received in evidence. Such an amendment of the proceedings after the records are filed with the city clerk might affect substantial rights of both the purchaser and the former owner, who relied on it. The affidavit takes the place ■of a record, which any person may examine, and therefrom ■ascertain whether the requirements of the statutes have been complied with. To permit an amendment after the record is made up and filed would defeat the objects of the statutes. Iverslie v. Spaulding, 32 Wis. 394; Allen v. Allen, 114 Wis. 615, 91 N. W. 218.

By the Gowrt. — Judgment reversed, and tbe cause remanded for a new trial.