Washburn Land Co. v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

102 N.W. 546, 124 Wis. 305, 1905 Wisc. LEXIS 63

• Court: Wisconsin Supreme Court
• Decided: February 21, 1905
• Status: Published

Opinion

Maeshalu, J.

At the trial respondent claimed the tax deed to be fatally defective on its face in three particulars. While the disposition of this appeal requires consideration of but one of them it seems best to refer briefly to each.

At the outset it must be kept in mind that while the statute prescribes the form to be used in making a tax deed, and adherence thereto with considerable strictness has been uniformly held to be necessary, neither by its terms nor as construed by the decisions does the statute call for strict compliance. Substantial compliance is all that is required. Sec. 1178, Stats. 1898; Hunt v. Stinson, 101 Wis. 556, 77 N. W. 901. Wbat constitutes such, compliance is not always easy to determine, and tbe decisions are not in tbe most perfect barmony in respect thereto. There was an effort made in Hunt v. Stinson, supra, to bring them together and to weed out uncertainties, but it seems without entire success. The decisions to the effect that an omission from a tax deed of any material feature of the statutory form is fatal thereto were firmly adhered to, but at the same time it was shown that a somewhat more liberal rule governs the matter than would seem to be the case from a reference to some, of the early decisions. Those declaring that the omission of a material feature of the statutory form, rendered harmless by other parts of the deed, in that the real fact designed to be shown by the omitted feature is suggested by necessary inference from other parts of the deed, does not affect the validity of the instrument, were approved. It was said that omissions and blunders that do not prejudice or deceive any one or affect the substance of the conveyance do not militate against the rule of substantial accuracy required by the statute. That was said to be the rule of Austin v. Holt, 32 Wis. 478; Orton v. Noonan, 25 Wis. 672; Cousins v. Allen, 28 Wis. 232; Hotson v. Wetherby, 88 Wis. 324, 60 N. W. 423; Milledge v. Coleman, 47 Wis. 184, 2 N. W. 77; and that they were consistent with Krueger v. Knab, 22 Wis. 429; North v. Wendell, 22 Wis. 431; Eaton v. Lyman, 33 Wis. 34. Doubtless it is true that such cases are in harmony as regards stating the general principle, but they are not in all respects in harmony in the illustrations they afford of its scope.

The statutory form has three significant features material to this case. In the opening lines it requires the deed to show whether the applicant therefor presents himself as the original owner of the certificate or as assignee. This arrangement of words is used in that regard: “Whereas,- (or .assignee of-) has deposited,” etc. There can be no mistaking tbe legislative purpose thereof. After tbe blank space designed to be filled up with tbe descriptions, and in as close connection therewith as practicable, there is a blank to be filled np with the name of the purchaser at the tax sale. It would seem, as an original proposition, that the legislative purpose was to have the deed show upon its face whether the applicant was the person entitled to receive the same, either as original holder of the tax certificate or assignee, and whether the purchaser at the tax sale was a person competent to purchase. Preceding the feature last mentioned there are blanks designed to be filled up so as to show that the lands were sold at the place required by sec. 1130, Stats. 1898, this arrangement of words being used to that end: “For the nonpayment of taxes, sold by the- at public auction at-, in the county of-, on the-■ day of -, in the year of our Lord one thousand eight hundred and-, to the said-,” etc.

As indicated in the statement the first statutory requisite in the deed in question was responded to in this wise: “Whereas, A. C. Probert, assignee of Bayfield county, has deposited,” etc., while the blank space specially designed for the name of the purchaser was filled up by writing in “A. C. Probert.” It is claimed that thereby A. C. Probert is declared to be assignee of Bayfield county of the certificate, and also -the purchaser at the tax sale, so that no one can tell to a reasonable certainty who in fact was such purchaser, or whether Probert was in fact the person entitled to receive the deed, thus rendering it void upon its face. The court, it seems, so held, following Dunbar v. Lindsay, 119 Wis. 239, 96 N. W. 997. Respondent insists that such case is the ruling authority on the question presented, while appellant confidently insists that a similar defect was distinctly declared to be immaterial in Austin v. Holt, 32 Wis. 478; that the decision has stood the test of over twenty-five years without having been criticised, unless it be in Dunbar v. Lindsay, and that the latter case is distinguishable from the former. The late case was based on North v. Wendell, supra, which was ruled by a case decided substantially at the same time. Krueger v. Knab, supra. Such late case and the two earlier ones seem to be in substantial harmony, while the former seems to be out of harmony with Austin v. Holt, supra, upon which counsel relies. That case was not referred to in Dunbar v. Lindsay, and Krueger v. Knab and North v. Wendell seem to have been both overlooked when Austin v. Holt was decided, while at the nest term after the decision in Austin v. Holt, Eaton v. Lyman, supra, was decided, in which Austin v. Holt was not referred to, but the two earlier cases were and approved. When we came to Hunt v. Stinson, supra, having in mind only the general principle that substantial compliance with the statutory form is all that is required, it was said that all the cases mentioned were in harmony. Later in Dunbar v. Lindsay, supra, North v. Wendell, Eaton v. Lyman, and Hunt v. Stinson were cited and followed as ruling authorities.

More detailed reference to the above mentioned cases is necessary ,in- order to determine definitely the points of conflict between them, and which should be regarded as ruling the proposition under consideration. We must make the examination, keeping in mind the general principle stated that the omission of a material' requirement of the statutory form, which is not supplied by necessary inference from the other parts of the deed, is a fatal defect. The court gave a very wide range to that doctrine in Hunt v. Stinson. While approving previous decisions to the effect that a tax deed must show who was the purchaser at the tax sale, and whether the applicant for the deed was the one entitled to receive the same, either as such purchaser or as assignee, the court held that where there has been a succession of assignees the omission to state them, showing a chain of title reaching from the purchaser at the sale to and including the applicant for the deed, is not material if tbe deed, shows that tbe applicant deposited tbe certificate as assignee, since that, by implication, states that be bolds tbe same by title derived from tbe original purchaser, either direct or through a succession of assignments.

In Krueger v. Knab, supra, the opening recital in the deed was in these words: “Whereas, Edward Krueger, of the city of Milwaukee, has deposited*” etc., suggesting by necessary inference that Krueger was tbe purchaser at the tax sale. At the proper place for specifying by express words who was such purchaser it was given as the “city of Milwaukee." Thus the inference at the start was rebutted by such express statement, leaving nothing to show whether Krueger was entitled to receive the deed or not, and it was held to be fatally defective.

What form of deed was used in North v. Wendell, supra, we are unable to state. Tbe cases and briefs used upon the argument are not within our reach. Tbe facts in regard to the-other cases are obtained partly by reference to the printed' cases and briefs, and partly by reference to the published decisions. It is assumed from language in North v. Wendell that the deed there was in precisely the same form as in Krueger v. Knab.

In Austin v. Holt the opening recital was in these words “Whereas, Herman Johnson, assignee of Oconto county, has deposited,” etc., and in the proper place for the name of the-purchaser at the tax sale were written the words “Oconto county.” Later at the end of the recital, where there was no blank required to be filled up, and following the words “aforesaid purchaser” which were designed in the form to refer back to the name previously written in the blank, the name “Herman Johnson” was written so that the deed read this wise: “Sold ... to the said Oconto county . . . the whole of’ which sum of money has been paid by the aforesaid purchaser, Herman Johnson.” The court said that the interpolation was an obvious and harmless mistake; that it corrected itself when read in connection with other parts of the deed, since they showed distinctly that the purchaser at the tax sale was Oconto county, and that Herman Johnson presented himself as the proper party to receive the tax deed as the assignee of said county. The matter was disposed of in a very few words without any reference being made to previous decisions of the court. Since the name “Herman Johnson” was industriously added to the printed form where there was no call for any writing to appear, the reasonable probability was, it would' seem, that Johnson was the purchaser. One would think that the person who draughted the deed must have made the interpolation much more considerately than he filled the blank. We cannot see that the decision is in harmony with Krueger v. Knob, 22 Wis. 429, and North v. Wendell, 22 Wis. 431.

In Dunbar v. Lindsay, 119 Wis. 239, 26 N. W. 997, the opening recital was the same as in Krueger v. Knab. When it came to the statement of who was the purchaser at the tax sale the blank was filled up consistent with what had preceded, the same as in Austin v. Holt, 32 Wis. 478; then, as in that case,, there was an interpolation made, which was in its entirety a departure from the statutory form, viz.: “Whereas it appears, as the fact is, that the aforesaid certificates have been duly assigned by the said-to the said William Lindsay.” So the deed at the outset spoke of William Lindsay,, inferentially, as the purchaser at the tax sale. Later at the proper place he was said to be such purchaser, and by the added clause he was said to be the holder of the certificates' from some unnamed party. It will be seen that the defect was more like that in Austin v. Holt than that in Krueger v. Knab and North v. Wendell. The court held that it was fatal, on the authority of the last two cases and Hunt v. Stinson, 101 Wis. 556, 77 N. W. 901, which had been recently decided.

Now here we have a case where the opening statement of the deed is inconsistent with the name of the purchaser at the tax sale, where that is required to be expressed. The two features are not in harmony followed- by an inconsistent clause, as in Austin v. Holt and Dunbar v. Lindsay, but the blank space for the name of the purchaser is so filled as to be inconsistent with the opening recital. The defect, though not of the nature of that in Krueger v. Knab, is such a near approach thereto that there is no escaping the conclusion that it is fatal, because the name of the purchaser at the tax sale is not definitely stated in the deed, as designed by the statutory form, and does not otherwise appear by necessary inference, and the same doubt exists in respect to whether the applicant for the deed was entitled to receive the same, unless we are to overrule Krueger v. Knab, North v. Wendell, Dunbar v. Lindsay, and Hunt v. stinson. It seems that the want'of harmony in the decisions to which we have referred is caused by failure in Austin v. Holt to properly apply the principles of preceding cases. That case should not rule regardless of whether it is light or not as an original matter, upon the ground that it has become a rale of property, since it does not seem to have been followed, but rather to have been discredited from very soon after it was decided to the present time, although not by direct reference.

Erom the foregoing we deduce this: When the opening recital in a tax deed, as to whether the applicant therefor presented himself as the purchaser at the tax sale, or as assignee of the certificate, contradicts the part where the name of the purchaser is required to appear later in the deed, the instrument fails to show with reasonable certainty who was in fact such purchaser and that the applicant for the deed was entitled thereto, and is fatally defective.

The suggestion that the deed is void because the recital therein is to the effect that the tax sale was made at the office of the county treasurer in Bayfield county, instead of at the county seat of such county, does not seem to have merit. Sec. 1130 provides that a tax sale must be held at the seat of justice of the county. The form contains a blank designed to 'be filled up so as to show that fact by tbis arrangement of words: “Sold ... at public auction at-, in tbe county •of -.” Obviously any method adopted for filling tbe blank spaces wbicb will, by necessary inference, indicate compliance with sec. 1130, Stats. 1898, is all that is required. Since tbe office of tbe county treasurer must necessarily be at tbe county seat, to state that tbe sale was conducted at tbe •county treasurer’s office in tbe county is equivalent to stating that it was conducted at a public place at tbe seat of justice •of tbe county.

Tbe claim that tbe record of tbe deed is defective and shows that tbe instrument was also because, for convenience, several .forms were attached together, all tbe printed portions, except that preceding tbe blank space for writing in descriptions in tbe first form, and that following it in tbe last form, being erased so as to leave sufficient space to write all tbe descriptions, hardly deserves more than passing notice. Tbe parts erased, of course, form no part of tbe deed, nor of tbe record, and tbe parts left, aside from tbe. fatal defect to wbicb we have alluded, make a complete deed.

By the Court. — Tbe judgment is affirmed.