#### Iverslie vs. Spaulding.

Tax Sale. *Evidence of the posting of list of delinquent lands, and notice of sale.*

1. A failure of the county treasurer to post up copies of the statement of lands returned delinquent and notice of sale in the manner required by the statute invalidates the sale and a tax deed issued thereon. *Jwrvis v. Silliman,*21 Wis., 600, followed.

2. Where the *affidmit*of the treasurer on that subject does not show a proper posting of such notices, the fact that they were duly posted cannot he shown by parol at the trial of an action involving the validity of the tax title, as this would defeat the object of the statute in requiring such affidavit to be filed and preserved in the office of the clerk. Tay. Stats., ch. 18, §§ 137,151. *Adams v. Wright,*14 Wis., 408, distinguished.

APPEAL from tbe Circuit Court for *Waupaca*County.

Action for a trespass to certain lands in said county, alleged to belong to tbe plaintiff, in entering thereon and cutting down and carrying away timber etc. Answer, that the land, at the time mentioned in the complaint, belonged to and was in the possession of the defendants. The plaintiff claimed under a tax deed dated July 26,1869. The defendants put in evidence the affidavit of publication of the notice of the tax sale of 1866, authenticating the same by the testimony of the clerk of the board of supervisors. The affidavit, omitting the formal part, signature and verification, was in these words: “Evan Cooledge, being duly sworn, deposes and says that he did, as the law required, put up four of the annexed notices in four *395public places at least lour weeks previous to tbe day of sale.” Tbe plaintiff produced Evan Cooledge as a witness, and offered to prove by bim tbat be was county treasurer of said county in 1866, and tbe person who made tbe sale, and tbat be posted four notices prior to tbe sale, three in tbe county and one in tbe most conspicious place in bis office as tbe law directs; but tbe evidence was rejected. Tbe court instructed tbe jury tbat tbe deed was void; tbe defendants-had a verdict and judgment; and tbe plaintiff appealed from tbe judgment.

•7. *F.*McMullen, for appellant:

Tbe affidavit of posting notices is made, by tbe statute, *pri-ma facie*evidence of tbe facts therein stated (1 Tay. Stats., cb. 18, § 284); but it is not made tbe *only*evidence that tbe requirements of tbe law have been complied with. The facts may therefore be proved by tbe oral testimony of tbe officer, either strengthening or contradicting tbe affidavit. 3 Stark. Ev., 1044 ; *Carpenter v.*Fly, 4 Wis., 420 ; *Adams v.*Wright, 14 id., 408. In tbe present case, however, there was no attempt to contradict tbe affidavit, but merely to strengthen tbe statement therein contained tbat the treasurer did as tbe law required, by showing more fully what be did. 2. Tbe farthest tbat courts have ever gone is, to bold tbat where tbe law requires tbe *proceedings*to be recorded, tbe title of tbe purchaser must stand or fall by tbe *record*itself; oral evidence being inadmissible where tbe officer omitted to record the originals, or recorded them'defectively. Blackw. on T. T. (ed. of 1864), 248, 512; *Massee Heirs v.*Long, 1 — 4 Ohio Cond. R., 364; *Miner v.*McLean, 4 McLean, 138; *Coil v.*Wells, 2 Yt, 318, 319. But where tbe record or document appointed by law is not a part of the fact to be proved *(the proceeding*itself), but is merely a collateral or subsequent memorial of tbe fact, it has not this exclusive character, but any other legal proof is admitted. 1 Gfreenl. Ev. (4th ed.), § 86.

*F. L.*Browne, for respondent,

contended that tbe affidavit of posting notice of sale was fatally defective (Laws of 1859, *396cb. 22, sec. 3 ; *Jarvis v.*Silliman, 21 Wis., 600); and be cited tbe provisions of secs. 5 and 15, cb. 22, Laws of 1859, in regard to depositing and preserving tbe affidavit in tbe office of tbe clerk of tbe county supervisors, as showing that tbe legislature did not intend to permit tbe evidence of tbe facts to rest in parol.

Cole, J.

It is conceded by tbe counsel for tbe plaintiff that tbe affidavit of tbe county treasurer of tbe posting of a statement of tbe returned delinquent lands and notice of sale was defective. Tbe law required tbe treasurer to cause tbe notice of sale, with such statement, to be published in some newspaper as therein designated (sec. 133, ch. 18, Tay. Stats., p. 427), and also, at least four weeks previous to tbe day of sale, to post up copies of said statement and notice in four public places in tbe county, one of which copies should be posted up in some conspicuous place in bis office. Tbe affidavit fails to show that this was done, and tbe tax deed therefore was invalid within tbe decision of *Jarvis v.*Silliman, 21 Wis., 600. But in this case tbe plaintiff offered to prove by tbe county treasurer -who made tbe sale, that be did in fact post four notices prior to tbe sale, three in tbe county, and one in the most conspicuous place in bis office, as tbe law directs. And the only material question in tbe case is, whether tbe court was right in excluding this evidence, and in bolding that it was not competent to prove by parol evidence that tbe officer complied with tbe law in regard to the posting of tbe notices.

We are inclined to think that tbe evidence offered was properly excluded. The law made it tbe duty of tbe county treasurer to make an affidavit of tbe posting of such statement and notice, which, together with the affidavit of tbe publication, was to be carefully preserved by him, and immediately after the close of tbe sale deposited in the office of tbe clerk of the board of supervisors of bis county. (Secs. 137 and 151, cb. 18, Tay. Stats.) These were to be filed and preserved by tbe clerk in bis office, *397and they were made *prima facie*evidence of the facts therein stated in all judicial proceedings. (Sec. 284.) Now the object of these provisions, in thus requiring these affidavits to be filed and preserved in the office of the clerk, doubtless was, to enable all persons interested in the matter to ascertain from them whether the law in regard to the posting and publication of notice of sale had been complied with. It was to perpetuate this evidence, and was intended to be for the common benefit of the purchaser and former owner. These affidavits were to remain on file, and take the place of a record which might be examined by any one to see what the proof was upon these points. And if this was the object of the statute in requiring these affidavits to be filed and preserved, then it is very clear that parol evidence would be inadmissible to cure defects in them, or aid them by showing that notices were actually posted according to law. The case seems to fall strictly within the reason and doctrine of the decisions to which we are referred on the brief of counsel, arising under statutes which require the tax proceedings to be recorded, and is governed by analogous principles. Those cases hold that the record alone can be resorted to for the purpose of determining whether the requirements of the statute have been complied with, and that the introduction of parol evidence in aid of the record thus required to be made, would defeat the policy of the law. Blackwell on Tax Titles, pp. 248-9, and authorities cited in note one.

The counsel for the plaintiff conceded that if the defect related to any matter which the statute required should be recorded, then parol evidence would be inadmissible to supply the omission. But we think the same rule should be applied to the affidavits, under the circumstances, that would apply to a statement which the law required should be recorded. For these affidavits constituted in fact a part of the record of the tax proceedings, and may have been examined by the original owner, who failed to redeem solely for the reason that he discovered there was no record evidence that any proper notice of *398sale bad been given by Ibe county treasurer. If tbis view of the statute be correct, then it is very manifest that the case of *Adams v.*Wright, 14 Wis., 408, has no application to it. Here the facts in respect to posting the notices of sale must be shown by the affidavit which the law requires shall be made and filed; there the notary could himself prove demand and notice of dishonor of the note. The affidavit is made the exclusive evidence of the facts in regard to posting the notices.

In this case the court directed the jury that the proof showed that the notice of sale upon which plaintiff’s tax deed issued was not given as required by law, and that therefore the deed was void. This direction was correct upon the evidence.

*By the*Court.— The judgment of the circuit court is affirmed.