Bouchier v. Hammer

Dodge, J.

As the defendant pleads title under each of three distinct tax deeds, any one of them, if valid and based upon legal and regular procedure, is sufficient to establish his title and, therefore, his defense. Sec. 1176, Stats. (1898). Eor this reason we shall consider only the infirmities in the-deeds based upon tax sales of 1903 and 1904 and in the conduct of those sales.

1. The first ground of invalidity, and that common to both sales, is the alleged insufficiency of the affidavits by the county treasurer to posting of notices of the tax sale in compliance-with sec. 1130, Stats. (1898), which requires that the treasurer shall cause copies of notice, etc., to be “posted in at least four public places in such county, one of which copies shall be posted up in some conspicuous place in his office;” also-that he shall file affidavit of such posting. The affidavit in this case declares that he

“posted up the copies of the annexed statement and notice in five public places in said Price county, Wisconsin, to wit: “ on April 18, 1904,- one of which copies was posted in a conspicuous place in the office of said county treasurer in the-courthouse in the city of Phillips, in said county; one copy in the office of the county clerk in the courthouse in the city of’ Phillips in said county; one copy on the front of the building known as the Turner House in the village of Park Ealls, in said county; one copy on the front of the building known as-the Jump Biver House in the village of Prentice, in said county; one copy on the inner wall in the postoffice in the-town of Ogema in said county.”

While it is intimated, if not in terms declared, in Jarvis v. Silliman, 21 Wis. 599 , and Hart v. Smith, 44 Wis. 213, 226 , that an affidavit stating that such notices were “posted in, four public places in the county” satisfies this statute, an affidavit directly to that effect was apparently held invalid,. *651 although, without any debate and on concession of counsel, in Wis. Cent. R. Co. v. Wis. River L. Co. 71 Wis. 94 , 36 N. W. 837 , although that 'decision is rendered indefinite and uncertain upon the particular point because of other defects found in the affidavit. It is further decided in Hart v. Smith that a mere description of the places without declaring them to be public may be sufficient if the court can see from the description that they are of the character indicated by the words “public places.” The suggestion is made by the court that the better method to satisfy the statute is to describe the-places and make affidavit to the fact that they are public. In Hilgers v. Quinney, 51 Wis. 62 , 8 N. W. 17 , the places were described, but were such as not necessarily to be public. The affidavit was condemned on the sole ground that the only allegation was that they were “public places in the city of' Chilton,” which, said the court, would not necessarily make them public places in and for the county; the intimation being clear that had they been declared to be*public places of the county that would have sufficed. In Allen v. Allen, 114 Wis. 615 , 91 N. W. 218 , the several places were described as at certain specified postoffices without declaring them'to be public places, and it was held sufficient. In Myrick v. Kahle, 120 Wis. 57 , 97 N. W. 506 , the latest case on the subject, the-affidavit was condemned because it described places which might or might not be public and failed to declare that they were public places, with the clear intimation that if such fact had been declared in hcec verba the statute would have been satisfied. We think it obvious that the result of these decisions, in light of the words of the statute, is to the effect that if the affidavit on file declares conduct of the treasurer in the posting which complies with the statute, the validity of that step in the proceedings is established prima facie. It is declared in several of the cases cited that the allegation that a place of posting is a public place involves both a statement of fact and a conclusion of law. But the expression “public *652 place” is not occult It is a part of the English language, and tbe words are common and ordinary in usage, and that, too, in tbeir legal designation, namely, 'a place where the public resort, so that the exposure of such a document is likely to give notice. The publicity of the place involves in common statement quite as much, if not more, of the element of fact as it does of legal conclusion. There is no good reason why the assertion- that the posting in four public places, accompanied by a specification of places not inherently nonpublic, is not such evidence as, undisputed, establishes the fact required by sec. 1130. If false, the specification of the place supplies the opportunity to prove the falsity; while the absence of such specification is a good practical reason for repudiating an affidavit which merely asserts them to be public, because then a .sale might be conducted in fraud of the statute and no opportunity exist years afterwards to prove the fact. We conclude that the posting, as established by the treasurer’s affidavit, duly filed, complies with sec. 1130.

Another criticism of this affidavit is that it merely declares that the place in the county treasurer’s office, at which one of the copies was posted, was a conspicuous place. What we have said with reference to the phrase “public place,” and the extent to which this upon its face must be considered a statement of fact, applies quite as strongly here. We think it was not necessary to go further and define with particularity the exact spot in that office, whether upon the walls, windows, doors, or furniture, such notice was posted.

2. Another defect asserted is that the printer’s affidavit of publication showed that the notices were published only three weeks instead of four. The sale of 1903 took place on May 19th, that of 1904 on May llth. The affidavit in each case •declared that the notice “was printed and published in such newspaper once in each week for four successive weeks, commencing on the 15th of Api’il and terminating on the 6th of ’May.” Of course there is confusion of terms between the *653 affidavit and the statute. Tbe latter requires that tbe notice shall be published once in each week for four successive weeks prior to tbe day of tbe sale. This of course requires a period of twenty-eight days of publication before tbe sale, but that publication is accomplished by issue of the paper containing the notice on four distinct days, one only in each week; so “publication of notice” may apply to the term of notice, but it may also apply to the physical fact of printing the notice in a published newspaper, and clearly that is the significance in which it is used in this affidavit, and indeed is the meaning given to the expression by this court in Chippewa River L. Co. v. J. L. Gates L. Co. 118 Wis. 345, 357 , 94 N. W. 37 , 95 N. W. 954 . The joining with the word “published” the word “printed” in this affidavit emphasizes and renders sure the meaning in the mind of the affiant. So read, it establishes four printings, and the dates are entirely consistent with that assertion; May 6th being the day upon which a weekly paper would be issued which also was issued on the 15th of April. We think there is no ambiguity in this affidavit, but that it declares that on four specific days in separate successive weeks this notice was printed, and that more than one complete week after its last printing elapsed before the day of sale, and that constitutes in law a publication for four weeks, although the printing terminated in twenty-two days.

3. The deed upon the sale of 1903 is further assailed on the ground that the so-called affidavit of nonoccupancy was sworn to five days before the deed issued. The affidavit declared both that at the time it was made, May 16th, there had not been thirty days of continuous actual occupancy, and that on that day there was no occupancy. Such an affidavit necessarily establishes the fact that there could not have been the thirty consecutive days’ occupancy within the meaning of the statute on May 21st, the date of the deed. This court has at least twice so ruled. Dreutzer v. Smith, 56 Wis. 292, 302 , *654 14 N. W. 465 ; Howe v. Genin, 57 Wis. 268, 269 , 15 N. W. 161 .

4. It is asserted that the printer’s affidavit as to the sale of 1904, in distinction from that of 1903, failed to state that the newspaper was a legal newspaper under the description of sec. 1130. We are unable to understand what respondent’s claim is. The affidavit of 1904 contains the same declaration that the paper had been published in Price county for the •legal period as does the affidavit of 1903, differing only in that it asserts its publication for a period of more than three years instead of,two. There is no material distinction between the two affidavits in this respect. If there is any infirmity in that of 1904 it should have been pointed out. We •cannot assume the duty of searching for it.

5. It is further contended by respondent that appellant •cannot claim under either of the later deeds; that his purchase at the sales in 1903 and 1904 after his purchase of tho tax certificate in May, 1902, must be deemed a payment of those taxes. This contention, however, is negatived by Lybrand v. Haney, 31 Wis. 230 , and Patterson v. Cappon, 129 Wis. 439 , 109 N. W. 103 .

In conclusion: we find none of the alleged defects in either •of the deeds on the sales of 1903 or 1904 to exist, and must therefore recognize those deeds as having all the effect conferred by sec. 1176, Stats. (1898), to vest in the grantee, the appellant, an absolute estate in fee simple in said land, at •least as against the plaintiff.

By the Cowt. — Judgment reversed, and cause remanded with directions to enter judgment for defendant.

BauNES, J., dissents.