Hilgers v. Quinney

OetoN, J.

We think that it was conclusively shown by the evidence, including his own testimony, that the appellant is, and, since he became of age, has been, a citizen of this state, by every test known to our constitution and laws, and, so far as his being a “ civilized person of Indian descent, and not a member of any tribe,” can make him such. Subdivision 4, art. III, State Const.; In re Wehlitz, 16 Wis., 443 ; In re Conway and Gibbons, 17 Wis., 526 . He does not testify that he ever belonged to any tribe of Indians, or ever participated in any government reservation or bounty for the benefit of any tribe, or ever submitted to any of the laws, customs, rules or regulations of any tribe; and, according to his own evidence and the testimony of other witnesses, he has at least claimed the right of suffrage as a citizen, and has always adopted the manners customs, habits and industries of civilized life. In *67 bis education, bis domestic and social relations, tbe conduct and management of bis business, and in tbe accumulation of property, be bas occupied no mean grade in civilized society, and, in many respects, above a large class of tbe white papu-lation of tbe state. This was also tbe status of John W. Q.uin-ney, the father of the appellant, in bis lifetime, according to a clear preponderance of the evidence. But, as to him, tbe patent of tbe government to him of tbe land in question, and tbe act of congress approved January 27, 1853, in accordance with which it was issued, and bis acceptance of tbe grant on tbe terms in which it was made, are conclusive against bis further connection to any material extent with bis tribe, and of bis full adoption of all of tbe relations of civilized life. He had long been in the exclusive occupancy of this land as bis farm and home, and it bad been once allotted to him, and be bad cultivated and improved it, and otherwise treated it in every respect as bis own private property. Tbe act of congress was for bis exclusive benefit, and be must be presumed to have approved, if be did not procure, its passage; and it is significant that, when introduced, it not only provided for this grant, but it also declared John W. Quinney a citizen of tbe United States. It finally passed without this declaration, presumably on constitutional grounds. It authorized Ibe payment to him of $1,000, more or less, of tbe money belonging to tbe Stock-bridge tribe of Indians, and granted to him “ in fee-simple, and to bis heirs and assigns forever,” tbe land in question, “in lieu of all rights of JohnW. Quinney in tbe lands and annuities of tbe Stoekbridge tribe of Indians, and in tbe annuities, money and land to which said Indians now are or may hereafter be entitled under existing treaties.” Tbe patent was issued in accordance with this act, and “ for tbe considerations therein mentioned.” Tbe acceptance of this grant divested him of every right which be bad in common with bis tribe, and was tbe most conclusive act which be could perform to divorce and separate himself from bis tribe. This land be de *68 vised to bis son, tbe appellant. From this evidence the true status of both the father and the son is most clearly and conclusively shown to be that of “civilized persons of Indian descent, not members of any tribe.” The treaties, reports and public documents referred to on the argument show nothing-conclusive of this question either way, but they tend strongly to confirm this view. This conclusion may not be important, and may be irrelevant so far as the taxability of this land is concerned, but may have an important bearing upon the construction of the act of congress and the patent, and on the question whether the land is held “ by purchase,” and therefore taxable within the statute. If it is so held, it is immaterial whether the Quinneys were citizens or not; the land is not exempt from taxation. That it was so obtained and held by John W. Quinney, is too plain for argument. The surrender of all of his rights to the lands and annuities of his tribe, and of all moneys, lands and annuities then belonging, or which might thereafter belong, to his tribe, whereby he parted with things of great value, is mentioned in the patent itself as the consideration of the grant; and the only reasonable interpretation of the act of congress and the patent is, that JohnW. Quinney purchased this land of the government, and the government sold and conveyed it to him in fee-simple, in consideration of this surrender — a consideration deemed adequate and sufficient by the congress of the United States when it made the grant. By all authorities, this was as much a purchase of government land by John W. Quinney as could have been made by any other person.

This conclusion is not reached, but is confirmed, by the fact that John W. Quinney had already adopted the manners and habits of civilized life, and by what, at least, should be the policy of the government in respect to such persons — to dissolve their tribal relations and encourage their private ownership of land, and its cultivation and improvement as a farm, and their permanent settlement and civilization, whenever *69 it could be done with tbeir consent. The question whether this land was held by the Quinneys “ by purchase,” within the meaning of the statute, was expressly reserved by this court in Quinney v. The Town of St ockbridge, 33 Wis., 505 , because the title now shown did not then appear, and was therefore not considered; but there is a strong intimation in the opinion of the court in that case, that the title, when exhibited, might probably show a purchase from the government by showing a valuable consideration paid for the land. The learned chief justice says in his opinion: “ For aught that is alleged in the complaint, the land may have been held by John W. Quinney, the ancestor of the plaintiff, ‘ by purcháse,’ according to the definition given these words, and the interpretation put upon the statute in the case above referred to (Farrington v. Wilson, 29 Wis., 383 ), which would make the land taxable. John W. Quinney, or the person from whom he acquired, may have held £ by purchase,’ in the ordinary and popular acceptation; that is, for a valuable consideration paid for the land.” The act of congress and the patent together do show “ a valuable consideration paid for the land,” and by that decision, therefore, do show that the land was held “by purchase.”

There is nothing in the case of Farrington v. Wilson, supra, that militates against this .conclusion; for in that case the patent was issued to Antoine Grignon, according to a treaty made with the Winnebago tribe of Indians — he being a member of that tribe,— and the patent contains a prohibition against alienation of the land, and there was no valuable consideration for the grant. What is said by the learned chief justice in his very able opinion in that case, must be restricted in its application to the facts of that case; and, however general the language may be on some questions, it cannot embrace a case like this, where nearly all of the facts are so essentially different. We therefore conclude that this land has been held “by purchase” since July 14, 1854, the date of the patent, *70 and bas therefore been subject to assessment and taxation, and not within the statutory exception.

This being the most important question in the case, and of considerable public as well as local interest, and it having been very fully and ably argued by the learned counsel on both sides, it was thought best to decide it, although, as we are compelled to hold the tax deed by which th,e plaintiff claims title void for other reasons, it might not be strictly necessary to do so.

The affidavit of the county treasurer, as proof of the posting of the statement and notice of sale, is clearly defective, and not in compliance with the statute, which in this respect is mandatory and imperative. The statute (Tay. Stats., ch. 18, § 133) is as follows: “ And such treasurer shall also, at least four weeks previous to said day, cause to be posted up copies of said statement and notice m at least four public places in such county, one of which copies shall be posted up in some conspicuous place in his office.” The affidavit states that such copies were posted “at four public places in the village of Chilton in said county — one at the Chilton House, one at the drug store of William Mahoney, one at the Washington House, and one at the office of the county treasurer.” There are at least three substantial departures from the statute in this affidavit, as -proof of due notice. First. Treating the preposition at as identical in meaning with the preposition in, it does not state that such copies were posted up at four public places within such county. It may be said that it does state inferentially that they were posted up at four public places in such county, because it states that the village of Chilton is in such county, and they were posted up in that village, and therefore in such county. But compliance with a statute so imperative, and in respect to a matter so essential as a notice of sale, ought not to rest in mere inference and speculation. It may be that four places, or the places named, *71 in the village of Chilton, are public places so far as that village is concerned, and not public places so far as the whole county is concerned, within the meaning of the statute. We do not choose to speculate upon this question, and determine, as matter of law in this case, whether it will answer as well the requirement of the statute if such notices are all posted in one village in the county, as if some of them were posted in other public places within the county, or whether such places should be in different and distant sections of the county. Indulging in such speculations and latitude of construction might lead to conclusions which would entirely defeat the intention of the legislature in passing the statute, and the very object of such notices of sale. We choose rather to insist upon a compliance with the statute so strictly and substantially as to be unquestionable, when the statute itself is so plain and certain. Second. The same may be said as to the departure from the statute in the use of the word at instead of in, in respect to the places mentioned. The legislature have seen fit to use the word “in,” presumably for good reasons; and one reason may have been that it would better express the places, such as villages, cross-roads, school-houses and other public places in different and distant sections of the county; and another, that it is more definite and specific than the term at. Certain it is that these words are not synonymous, and may have very different meanings, depending upon their connection, and to give them the same meaning in any case, by construction, might be forcing them arbitrarily out of their natural and generally accepted meaning, and lead at best to mere uncertainty. Thvrd. The statute requires at least one of the copies to be posted up “in some conspicuous place in his (the treasurer’s) office.” The affidavit states merely that one of the copies was posted up “ at the office of the county treasurer.” This is a clear noncompliance with the statute, too apparent and substantial to require further consideration than mere mention. These defects are fatal to the validity of the tax deed (Jarvis v. SUM- *72 man, 21 Wis., 600 ; Matteson v. Town of Rosendale, 37 Wis., 254 ), and they cannot he cured or supplied by evidence aliunde. Iverslie v. Spaulding, 32 Wis., 394 . The plaintiff failed in his proof of title, and the judgment must be reversed.

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