Dolan v. Trelevan

LyON, J.

Three objections are made to the complaint: 1. That it does not appear therefrom that the seal of the county *150 board of supervisors is affixed to tbe tax deed. 2. That the deed is void for uncertainty in the description of the land which it purports to convey. 8. That .the complaint is fatally defective, by reason of its failure to aver compliance with the acts of 1867 and 1868 in respect to giving notice of the application for a tax deed.

I. Had the copy of the tax deed inserted in the complaint contained a scroll with the letters “L. S.” or the word “seal” written within it, probably no one would question that the copy showed that the original deed had the proper seal affixed to it, although such copy did not contain a fac simile of such seal. We think that the certificate of the clerk that he had affixed thereto the seal of the board is as good, if not better, evidence ■ >f the fact. Of course, when the deed is produced, if it is found that the attestation is false, and the seal wanting, the deed will be held void, and the plaintiff sent out of court. But until that fact appears, we are constrained to hold that the copy of the deed inserted in the complaint sufficiently shows that the original has affixed to it the proper official seal.

II. There is no uncertainty in the description of the land included in the tax deed, which affects the land claimed in this action. The subject matter of the action is the west half of a certain forty-acre lot, or of a certain quarter-quarter section, according to the subdivisions made by the government survey. The tax deed describes the whole forty, and excepts from its operation fifteen acres in the N. E. corner, and five acres in the N. 1-2 of the S. E. corner of the forty-acre lot. The five acres is on the east half of the lot. No part of it is upon the land affected by this action, and the description thereof is perfectív definite and certain. The only informality in the description is, that it is said to be in the north half of the southeast quarter of the forty, which .contains but five acres, when it should have been described as being the north half, etc.

As to the exception of fifteen acres, This is to be taken to mean a tract of land in the northeast comer of the forty- *151 acre lot, in a square form, containing fifteen acres. It is tbe same as tbougb tbe exception bad been of a piece of land in that corner forty-nine rods square. Walsh v. Ringer, 2 Ham. (Ohio), 435.

This takes about two and three-fourths acres from tbe wesi half of tbe forty, but does not affect tbe right of the plaintiff to the balance by virtue of his deed. It is quite immaterial also that the two excepted tracts include in part the same lands. That fact is not an element of uncertainty affecting the rights of the plaintiff to the balance of the west half of the forty not included within the exceptions.

III. To the objection that the complaint fails to show a compliance with the requirement of the law of 1867, ch. 113, there are two conclusive answers:

1st. It does not appear that the land was actually occupied for thirty days or more, at any time within the six months immediately preceding the expiration of the time of redemption from the tax sale; and hence it does not appear that any notice of the intended application for the tax deed was required by law.

2d. The provisions of that law are not applicable to this case, even though the land was so occupied. The sale of the land for nonpayment of taxes thereon was made May 10th, 1864, and of course the tax deed was due thereon May 10th, 1867. The act of 1867 took effect April 17th of that year, or but twenty-three days before the plaintiff was entitled to a deed. In Kearns v. McCarville, 24 Wis., 457 , this court held that law inapplicable to a case where the holder of the certificate was entitled to a deed before the passage of the act, or in less than three months thereafter. That decision is decisive on this point. See also State ex rel. Knox v. Hundhausen, 23 Wis., 508 ; Same v. Same, 24 id., 196; Curtis v. Morrow, id., 664.

Upon the whole, we are of the opinion that none of the ob- *152 jecticns to tbe complaint are well taken, and that tbe circuit court property overruled tbe demurrer thereto.

By the Court.— Order affirmed.