#### Shepardson vs. The Supervisors of Milwaukee County.

Equity. (1) *Oloud upon title.*(2) *Action under see.*29, *c7i.*141, *B. 8.*

1. Where an assessment roll and tax certificate are *void upon flieirfaee*for uncertainty in the -description of the land, they do not create any cloud upon the title, and equity will not interfere for the purpose of cancelling them.

2. It seems, however, that the assessment of the tax, the sale of the land, and the issue of the certificate, constitute a *setting up of a claim*to the land, within the meaning of sec. 29, ch. 141, B. S., and that the owner in possession might maintain an action under that section.

APPEAL from tbe County Court of *Milwaukee*County.

Tbe plaintiff appealed from an order sustaining, *pro forma,*a demurrer to tbe complaint as not stating a cause of action. Tbe substance of tbe complaint is stated in tbe opinion.

*Carpenter &*Murphey, for appellant.

*C. K. Martin,*for respondent.

Cole, J.

Tbis action is brought for tbe purpose of having certain levies of taxes, assessments, and sales described in the complaint, together with tbe tax certificates issued on such tax sales, adjudged void and canceled. Tbe ground for asking tbis relief is, that tbe levy and assessment of tbe said several taxes, tbe sales thereon, and tbe tax 'certificates, are unauthorized, illegal and void, for tbe reason that tbe description of tbe land in said several assessments and sales and certificates is uncertain, indefinite and vague, and is wholly void for uncertainty.

In tbe case of *Head v. James,*13 Wis., 641, tbis court decided that when tbe description of land conveyed by a tax deed was void on its face for uncertainty, such a deed constituted no cloud upon tbe title. A cloud cannot be‘ created by an instrument absolutely void upon its face. According to tbe allegation in tbe complaint, tbe description of tbe land in tbe assessment rolls and tax certificates is so’ uncertain, indefinite and vague as to be wholly void. This being the' case, they can *594injure no one, and constitute no cloud upon tbe title. The plaintiff has no occasion to call upon a court of equity to adjudge them void, because they are void now.

It is to be observed that this is not a proceeding under section 29, chap. 141, R. S. If it were, it might be sustained. That section provides that a person having the legal title and in possession of land, may institute an action against any one “ setting up a claim thereto.” The levy of taxes and issuing of tax certificates upon tax sales, by the officers of the county, although such certificate might be wholly void on account of the uncertainty in the description, might well be held to be “setting up a claim” to the land within the meaning of this statute. But the jurisdiction invoked in this case is founded upon the general powers of a court of equity to direct the can-celation of an instrument which, in an uncanceled state, has a tendency to throw a cloud over the title. This was the ground upon which the plaintiff’s counsel attempted to sustain the complaint on the argument. Treating it in this light, we suppose it to be well settled that equity will not interfere to direct the cancelation of instruments which are a nullity upon their face, and which cannot possibly throw any cloud upon the plaintiff’s title.

*By the Court.*— The order sustaining the demurrer to the complaint is affirmed.