#### Huey vs. Van Wie and others.

Tax Deed: *Oonchime of what facts*— Execution *and, acknowledgment by a deputy clerk*— Seal, *how recorded.*

T. A tax deed executed by a deputy, while chapter 503, Laws of 1853, and chapter 66, Laws of 1854, were in force, is conclusive of the existence of the contingency which under the statute authorizes a deputy to perform the duties of the clerk, though the fact is not recited therein.

3.Such a deed cannot he impeached by showing that the taxes for which the land was sold were excessive or illegal.

3. Such a deed recited that the land was “ sold by the county treasurer of said county of Dane, at public auction at the court house in the village of Madison, *in the county of Madison.” Meld,*that the court takes judicial notice that the village of Madison is in *Ea/ne county;*and the deed is good under those statutes, notwithstanding this clerical error.

4. A deputy clerk, in performing any official act, as in executing a tax deed or acknowledging the same, may do it in the name of his principal in office.

5. The corporate seal of the county official to a tax deed is sufficiently recorded, if indicated upon the record by the word “ seal ” written within a scroll.

APPEAL from tbe Circuit Court for *Dane*county.

Ejectment. The defendant claimed under a tax deed executed in May, 18S6, and recovered judgment; from which the *614plaintiff appealed. Tbe only questions raised on tbe trial were concerning tbe validity of tbe tax deed; and these are sufficiently stated in tbe opinion of tbe court.

*J. D. Gurnee*(with *J. G. HojjMns,*of counsel), for tbe appellant :

1.Tbe deed should bave been executed either by tbe clerk as clerk, or by tbe deputy as deputy, and not by one *in the name of the other.*If tbe deputy executed tbe deed in tbe absence of tbe clerk, as be must bave done if be acted within tbe statute, tbe act was bis own, and not tbe clerk’s; for tbe clerk can perform no official duty when absent or away from bis office. R. S. 1849, cb. 10, § 187; *State ex rel. Hopkins v. Olin,*ante, 309; *Miller v.*Lewis, 4 Comst. 553; *Beaumont v.*Yeatmcm, 8 Humph. 542; *MeBaven v. McGuire,*9 Sm. & M. 34; *Eastman v. Curtis,*4 Yt. 616; *Sexton v. Bhames,*13 •Wis. 100; *Conley v. Twrner,*10 Wend. 572; *Norton v. Colt,*2 id. 250; 1 Mann. (Mich.) 334; 1 Salk. 96; 12 Iowa, 46, 566. 2. Tbe recital that tbe lands were sold in tbe county of *Machi-son,*is a fatal mistake. Even if tbe word “ Madison ” could be rejected because there is no such county in the state, still, tbe court cannot supply tbe omission and insert tbe name of tbe right county. Tax deeds cannot, like other deeds, be aided by any intendment. *Curtis v. Sufre Brown Co.,*22 Wis. 167; *North v. Wendell,*id. 431; *Orton v. Noonan, ante,*p. 102. 3. Tbe certificate of acknowledgment is defective, so as not to entitle tbe deed to be recorded. It fails to identify either tbe person who executed tbe deed, or tbe one who acknowledged it; and we cannot go back of tbe certificate to speculate as to what did in fact occur before tbe officer. *Becmmont v. Irwin,*8 Humph. 542; *Hayden v. Westeott,*11 Conn. 129. 4. The deed was not properly recorded, as tbe recorded deed did not show tbe corporate seal attached to tbe original. Hence plaintiff-bad a right to redeem. 5. Tbe plaintiff should bave been permitted to show that there was an illegal excess in the taxes *615for which the lands were sold. A sale for a sum including illegal fees is void. *TVarner v. SujPts of Outagamne Co.,*19 "Wis. 611.

*Jl.W. & D. K. Tenney,*for respondents:

1. The deed was protected. under the statutes in force when it issued. Laws of 1852, p. 783; Laws of 1854, p. 78; *Smith v. Cleveland,*17 Wis. 556, 564; *Lain v. Shephardson,*18 id. 59. 2. If the deputy who executed the deed could only act in the absence of the clerk, then it will be presumed that the clerk was absent. The deputy having acted, the presumption is that the circumstances were such as gave him a right to act, and this presumption continues until the contrary is shown. 1 Phil. Ev. (ed. of 1868) 500, 506, 507, 534-6; 4 Comst. 566; 1 Mann. (Mich.) 344; 2 Seld. 422; 10 Wis. 563; 17 id. 537; 19 id. 149. Besides, the statute makes the deed conclusive of all the requisites to its execution, including the clerk’s absence, if that were necessary. 3. It was proper that the deputy should execute the deed in the name of his principal. Blackwell on Tax Titles, 375. 4. As to the certificate of acknowledgment, the statute prescribes no form, and the certificate must be construed with reference to the execution. 5. The scroll upon the record, indicating the proper seal on the original, was sufficient. 10 Wend. 654.

Cole, J.

The tax deed in this case was executed by the deputy; and it is conceded on both sides that when the deputy acts, the presumption is that the clerk was absent or disabled, or that a vacancy had occurred, so that the deputy was authorized to perform the duties of the clerk. If by this concession is meant, that in case of tax deeds, the courts will apply the maxim *omnia vite pvaisumuntev*— the presumption that officers, have performed their duty in the tax proceedings as in ordinary judicial proceedings — it is very doubtful whether any such presumption would arise. “ It is a general principle, that *616tbe party wbo sets up a title must furnish the evidence necessary to support it. If the validity of a deed depends on an act m pais, the party claiming under the deed is as much bound to prove the performance of the act as he would be bound to prove any matter of record on which its validity might depend. It forms a part of his title; it is a link in the chain which is essential to its continuity, and which it is incumbent on him to preserve.” *Williams v.*Peyton, 4 Wheat. 77. This brief quotation from the opinion of Chief Justice Marsham,, in the above case, which is in harmony with very many adjudged cases upon the same subject, shows that courts have not been in the habit of applying the same principle of presumption in the case of lands sold for non-payment of taxes, which is applied in ordinary cases in support of a *right*asserted in judicial proceedings; but in the absence of statutes changing the burden of proof, a party claiming under a tax title would be required to show affirmatively that the officers proceeded strictly in conformity with the law in divesting the title of the original owner. Still, when we consider the laws in force when this tax deed was executed, we think the presumption must be indulged in, that the deputy was authorized to act for the clerk in executing it. These statutes were chapter 503, Laws of 1852, and chapter 66, Laws of 1854; which, in effect, provided that the title conveyed by any deed of lands sold for the non-payment of any tax to the grantee therein, his heirs or assigns, should not be invalidated or in any way affected or avoided by any error previously made in assessing, listing, taxing, selling, *or comeymg sañd lamd.*Now it seems to us, in view of these enactments, that where the deed is regular and fair upon its face, .and executed by a deputy, who is an “ officer authorized by law to execute deeds of land sold for the nonpayment of taxes,” in the absence or disability of the clerk, the presumption must be, that the deputy was authorized to act for the clerk in executing the deed in question. The deed is *617made evidence of tbe existence of facts essential to its execution, including tbe contingency wbicb authorized tbe deputy to act.

This being so, we will proceed to notice tbe objections taken to tbe validity of tbe tax deed. Tbe deed was signed *“*Gabriel jBjoeNsoN, Clerk of Board of Supervisors of Dane County, Wisconsin, by *J.*H. McAvoy, Deputy.” It is insisted that it should have been executed by Gabriel Bjornson as clerk, or by J. H. McAvoy as deputy clerk of tbe board of supervisors. Tbe statute required every clerk to appoint a deputy, and enacted that “ such deputy, in case of tbe absence or disability of such clerk, or in case of a vacancy in bis office, shall perform all tbe duties of such clerk during such absence or until such vacancy shall be filled.” R.- S. 1849, cb. 10, § 46. Tbe power to make tbe deed is vested in tbe officer (the clerk of tbe board of supervisors in this case); and when tbe deputy acts, be should do so in tbe name of bis principal. Tbe general rule is, that every ministerial duty may be. performed by deputy, but that the deputy should proceed in tbe name of bis principal. Blackw. on Tax Titles, 315. There are cases wbicb bold that, when tbe deputy signs bis own name, instead of tbe principal’s, it is sufficient. *Calender v. Olcott,*1 Manning (Mich.) 344; *Downing v. Rugar,*21 Wend. 178; *Miller v. Lewis,*4 Comst. 554—566; *Wood v. Bailey,*12 Iowa, 46; *Finn v. Rose,*id. 565; *Eastman v. Curtis,*4 Vt. 616; *Beaumont v. Yeatman,*8 Humph. 542. But it seems to us that tbe better way is, when tbe deputy performs an official act for tbe principal, that be should do it in tbe name of bis superior. *Lynch v. Livingston,*6 N. Y. 422.

Another objection taken to tbe deed is, that it appears upon ■ tbe face thereof, that tbe lands sold were situated in tbe county of Dane, but that tbe deed recites that they were sold in tbe county of Madison. The deed recites that tbe land “ was, for tbe non-payment of taxes, sold by tbe county treasurer of said' *618county of Dane, at public auction at tbe court bouse in tbe village of Madison, in tbe county of Madison.” We must take judicial notice that tbe village of Madison is in tbe county of Dane, and that there is no sucb county as Madison in tbe state. *Woodward v. The Chicago & Northwestern R. R.*Co., 21 Wis. 309. Tbe doctrine of *Lain v. CooJc,*15 Wis. 406, does not apply.

A further objection is taken, that the deed is not properly acknowledged. Tbe certificate of acknowledgment states that, on, etc., “ Gabriel Bjornson, clerk of tbe county board of supervisors of Dane county, by J. H. McAvoy, bis deputy, and ” who was well known, etc., “ came personally before ” tbe officer, and acknowledged tbe due execution of tbe same.” Tbe acknowledgment was that of tbe clerk by bis deputy. Our statute prescribes no particular form of acknowledgment, and one by tbe deputy for and in tbe name of bis principal appears to us valid and sufficient.

Again, it is claimed that tbe deed is not properly recorded, so as to cut off tbe right of redemption. It is stated that tbe recorded deed did not show tbe corporate seal, but tbe recorded book bad the word “ seal ” inside of a scroll át tbe end of tbe clerk’s signature. Tbe county seal was in fact impressed upon tbe original deed, and we think tbe record of this seal met all the requirements of tbe law.

Tbe deed clearly concluded tbe plaintiff from showing that there was an excess in tbe amount of taxes for which tbe land was sold. By tbe statute it was conclusive evidence of tbe regularity of tbe tax proceedings. *Smith v. Cleveland,*17 Wis. 556.

This disposes of tbe material questions in tbe case.

*By the Cowrt.*— Tbe judgment of tbe circuit court is affirmed.

Mr. Justice Pawe dissented as to the first point discussed in tbe above opinion.

*619Tbe appellant moved for a rebearing, and tbe appeal was, finally disposed of at tbe February term, 1869.

Cole, J.

Tbe only point made on tbe motion for a rebear-ing tbat we deem it necessary to notice is, tbe objection tbat tbe tax deed is not in tbe form prescribed in tbe statute, because it recites tbat tbe lands were sold in tbe county of Madison. In tbe opinion it is stated tbat we must take judicial notice tbat tbe village of Madison is in tbe county of Dane, and tbat there is no sucb county as Madison in tbe state. If this is not a good answer to tbe objection, tbe statute certainly furnishes one which is entirely satisfactory. We refer to tbe clause of tbe law cited in tbe opinion, to tbe effect tbat tbe title conveyed, etc., shall not be in any way affected or avoided by any error in conveying tbe land. Tbe omission of tbe word “ Dane ” and tbe insertion of tbe word “ Madison,” is obviously a mere clerical error. If any force or effect is given tbe provision of tbe statute, it must be held tbat it cures sucb a mere verbal inaccuracy as occurred in this deed. Our attention has not been particularly directed to tbe language before, but it seems to us tbat it fully disposes of tbe objection.

*By the Court.*— Motion denied.