#### Swain vs. Comstock.

This court must take judicial notice of the existence, on and prior to the 29th of January, 1839, of a corporation entitled “The Town of Milwaukee on the West Side of the River,” although unable to find the act of the legislature incorporating it, its existence being clearly recognized in an act of the territorial legislature approved February 21,1839, and the supreme court of the territory, in 1840, having declared, in the decision of a cause before it, that such town was incorporated in 1837.

By an act of the legislature passed in 1839, entitled “An act to change the corporate limits of the town of Milwaukee,” the whole of a certain district in township 7, range 22, in the county of Milwaukee, is “ erected into a town corporate,” the authorities of which were to be “known by the name of the president and trustees of the town of Milwaukee,” all that part of the city lying east of the Milwaukee river constituting the east ward, and that part lying west of said river constituting the west ward. Section 25 of the act provides that “the clerks and treasurers of the two corporations now existing within the limits of the corporation hereby established * * * * shall transfer all the books, papers and moneys which may be in their hands, to the clerk and treasurer who may be appointed agreeably to this act.” Section 36 provides “that either of the boards of trustees of *the town of Milwaukee as at present oi'ga/mzecl,*or the board of trustees to be elected under the provisions of this act,” shall be authorized to build a certain bridge, &c. By the act incorporating the city of Milwaukee, passed in 1846, it was provided that after the expiration of three years from the sale of any lot for taxes, the same being unredeemed, the treasurer of the city should execute to the purchaser, his heirs or assigns, on presentation of the certificate of sale, a deed of such lot “ executed by the treasurer under his hand and the seal of the city, *m the name and, on behalf of the city of Milwaukee."*The treasurer was also authorized to execute deeds in the same manner *464“ for all lands sold for taxes levied by the president and trustees of the *town of Milwaukee as heretofore incorporated.”*In 1849, the treasurer of said city executed to one B., under his hand and the seal of the city, a deed of a certain lot in said city, which recited that the lot was sold to B. “ pursuant to an ordinance of the president and trustees of the Town of Milwaukee on the west Side of the River,” by the collector thereof, January 29th, 1889, for certain taxes due said town thereon for 1888 : that a certificate of sale had been issued to the purchaser; that by said ordinance the time for redemption had expired Janu-uary 29th, 1841; that no part of the premises had been redeemed within the time limited, and in consequence thereof, the purchaser, or his heirs or assigns, had become entitled to a deed; and that said B. was then the lawful owner of the certificate. The words of grant are, “I, C. G., as treasurer of said city, do grant ” &c., &c. In ejectment for said lot, commenced in 1854 by one claiming adversely to the tax deed, against one who had been in possession under it at the time of and more than three years after the recording thereof, *Meld,*

1. That under the act óf 1846, the city treasurer was authorized to issue said deed..

2. That the defendant was entitled to the protection of the limitation prescribed by sec. 128, ch. 15, R- S. 1S49, which declared that any suit for the recovery of lands sold for taxes (except in cases where the taxes had been paid or the lands redeemed, as provided by law) should be commenced within three years from the time of recording the tax deed, and not thereafter.

APPEAL from tbe Circuit Court for *Milwaukee*County.

*Swain*brought bis action of ejectment in the court below, in April, 1854, against *Oomstoclc,*for a certain lot in the city of Milwaukee. On the trial he showed his chain of title from the United States, through Byron Kilbourn. He also called the defendant as a witness, who testified that he occupied the lot in question at the commencement of the action. On cross-examination, he testified that he had been in possession of said lot for sometime previous to the commencement of the suit ; that he derived possession from one’Burdick, who had occupied the lot for about ten years to his (defendant’s) knowledge, and as he had been informed, for a much longer time ; and that Burdick claimed to have gone into possession under an agreement with said Kilbourn for the purchase of the lot. The defendant relied upon a tax deed which he offered in evidence, executed February 20, 1849, by the treasurer of the city of Milwaukee,, which contained the following recital: “Whereas, pursuant to an ordinance of the president and trustees- of the *465town of Milwaukee on tbe west side of the river, the collector of said town did, on the 29th of January, 1839, sell to Paul Burdick the following described premises [naming each lot separately, including the one in suit, and the amount for which each was sold], being the taxes and charges due the said town for the year 1838 on the said premises, and did issue certificates of the sale thereof to the said purchaser; and whereas, by said ordinance, the time for the redemption of said premises expired on the 29th of January, 1841; and whereas no part of said premises has been redeemed within the time limited by said ordinance, and in consequence thereof said purchaser, his heirs and assigns, have become entitled to a deed of the same * *; and .whereas it appears that one Paul Burdick is the lawful owner of said certificate; therefore, know all men by these presents, that I, Charles Greis ■ berg, Treasurer of the city of Milwaukee,'by virtue of the authority vested ir. me as treasurer of said city, in consequence of said premises, do grant” &c., &e. Signed, “Charles G-eis-berg, City Treasurer,” and sealed with the seal of the city. The defendant also claimed the benefit of the limitation contained in sec. 123, ch. 15, R. S., 1849. The plaintiff objected to the admission of said deed in evidence on the grounds, 1. That no foundation for its admission had been laid, by proving the preliminary proceedings. 2. That the instrument was not ' in the form prescribed by the statute ; and there was no statutory authority for the execution of such an instrument. 3. That the defendant, while in occupation of the premises, could not, by purchasing them at a tax sale, obtain a title adverse to that of the plaintiff. The objection was overruled, and the tax deed read in evidence, with a deed from said Burdick to the defendant. The court instructed the jury that said deeds, with possession under them during the time fixed by the stat- ' ute for the limitation of actions to recover lands sold for taxes constituted a good defense to the action. Yerdict for the de *466fendant, and judgment accordingly; to reverse wbicb tbe plaintiff took bis writ of error.

*E.*Mariner, for tbe plaintiff in error:

1. No foundation was laid for reading tbe tax deed in evidence. There is no act of tbe legislature incorporating “ The town of Milwaukee on the west side of tbe river.” There was no proof of the existence of any such corporation, and tbe court could not take judicial notice of its existence. Tbe deed of itself proves nothing. There is no statute giving any effect as evidence to such a deed. By tbe first charter, tbe deed is made “ evidence that tbe sale was regular, *according to the provisions of that act."*Laws of 1836, p. 120, sec. 14. That is, evidence of tbe mere sale. 3 Ohand., 75. Neither tbe sale nor deed was made under that act. Tbe charter of 1846, p. 181, sec. 38, wbicb was in force when this deed was executed, makes tbe deed “ evidence that the sale, and all the proceedings in levying tbe tax, advertising and making tbe sales, were *regular, according to the provisions of that act."*Tbe language of both these charters is such as to exclude sales made under any other act. Tbe provisions of tbe Revised Statutes apply to a deed executed by tbe clerk of the board of supervisors. R. S., 1839, p. 162; chap. 503, Laws of 1852, and chap. 66, Laws of 1854, only refer to deeds thereafter executed. None of these laws attempt to make deeds evidence of more than tbe mere regularity of the proceedings under some law wbicb" tbe court must recognize. None of them make them evidence of tbe existence of a corporation or of tbe taxing power. 2. Tbe deed offered is, on its face, void. (1.) Inasmuch as there is no act of the legislature incorporating “ Tbe town of Milwaukee on tbe west side of tbe river.” If any such corporation existed, it must have been under tbe act of 1836, Laws of 1836, p. 43. It is in tbe first place exceedingly doubtful whether that act authorizes tbe execution of a deed. 1 Blackf., 336 ; 2 Mich., 490. Certainly the act only allows a sale of real estate to be made, when no goods and chattels of tbe person *467chargeable with the tax, can be found ; and that fact should appear bj the deed. Only a sale is authorized, that is, a sale perfected by deed, if the law is broad enough ; but a sale completed, and not a defeasible contract of sale ; there is certainly no authority in the collector to execute a redeemable certificate. A sale *under a warrant to the*collector, and pursuant to law, is authorized, and not pursuant to the ordinance of the president and trustees. That ordinance may have followed the law, and may not. (2.) There is no authority for the treasurer of the city of Milwaukee to execute a deed upon a certificate of sale made by the collector of the “ town of Milwaukee on the west side of the river.” He is only authorized to execute deeds upon surrender of certificates of sale made under that act, and certificates of sale for taxes levied by the president and trustees of the town of Milwaukee. Sec. 89, charter of 1846. And this probably for the very plain reason that there was no power on the part of the collector of the “ town of Milwaukee on the west side of the river,” to execute a certificate of sale. (3.) It does not comply with the law of 1846, in that the treasurer does not make the ordinary attempt to execute the deed in the name and behalf of the city of Milwaukee by reciting that he does so. 3. At the tirae of the levy of the tax and the sale, Burdick was in possession as a vendee. It was his duty to have paid the tax. 12 Ill., 442 ; 14 id., 456. 4. The statute of limitation relied on has no application to a deed by the city, but only to deeds executed under the chapter in which the limitation is found.

*Finches, Lynde &*Miller, to the point that the action was barred,

cited see. 123, ch. 15, R. S., 1849; *Pillow v.*Robertsj 13 How. (H. S.), 472;- *Fdgerton v. Bird,*6 Wis., 527; *Sprecker v. Wakéley,*11 id., 432; *Hill v. Kricke,*id., 442 ; *Knox v. Cleveland,*13 id., 249; *Falkner v. Stevens,*7 id., 393. As to the form of the deed they cited 3 Barb. Oh., 576.

*By the Court,*

Oole, J.

This case turns upon the question whether section 123, chap. 15, R. S. 1849, applies to the tax *468deed offered in evidence by tbe defendant below. It is insisted and claimed by the plaintiff in error that that provision of law cannot apply to that deed, for several reasons, the more important of which we will proceed to notice.

The deed recites that it was given on a sale of the premises for taxes which were levied “ pursuant to an ordinance of the president and trustees of the town of Milwaukee on the west side of the riverand it is argued that there is no evidence whatever in the case from which the court could possibly be authorized to assume that there was ever in existence any such corporation as “ The Town of Milwaukee on the west side of the river." We have no doubt such a corporation once existed, of which we must take judicial notice, although we have been unable to find the act of the legislature incorporating it. We find however an act of the territorial legislature, approved February 21, 1839 (Sessions 1838 & 9, No. 30, p. 45), which recognizes, in the clearest and most satisfactory terms, the existence of a corporation described as *“ the*president and trustees of the town of Milwaukee on the west side of the river,” and which authorizes such a corporation to levy and collect a tax for the support of common schools “ in the same manner and at the same time that the corporation tax is now by law levied and collected.” There is a further recognition by the legislature of such a corporation, though not in as express language, in the subsequent act No. 53 (Sessions 1838 *&*9, p. 114). And in addition to this we have the decision of the supreme court of the territory of Wisconsin in the case of *Dousman v. Ths President and Trustees of the Town of Milwaukee,*at the July term, 1839, (Appendix to Laws of 1840-41, p. 178), in which the court say *“*that the town of Milwaukee on the west side of the river was incorporated and became a body corporate and politic in 1837.” From all this we feel fully warranted in assuming that a corporation existed on and prior to the 29th day of January, 1889, of the name and title of “ The Town of Milwaukee on the west side of the river.”

*469The deed in this case was made and executed by tbe treasurer of tbe city of Milwaukee in 1849, and it' is claimed that be was not authorized to execute a tax deed upon a certificate of sale made by tbe collector of tbe “ Town of Milwaukee on the west side of tbe river.” By tbe act No. 53, above cited, entitled “ an act to change tbe corporation limits and powers of the town of Milwaukee,” to use tbe language of tbe court in *Dousman v. The President & Trustees &c.,*“tbe two towns of east and west Milwaukee were united, and tbe old corporation dissolved.” There was to be a vote of tbe people upon tbe question whether the two corporations should be consolidated, and in case tbe majority was in favor of tbe adoption of tbe act, tbe clerks and treasurers of tbe old corporations were required to transfer all tbe books, papers and moneys in their bands to tbe clerk and treasurer of tbe new corporation, which was to be known by tbe name of the President and Trustees of tbe town of Milwaukee. Sections 1 and 25. By tbe last clause of section 38 of the city charter of 1846 (Laws of 1846, p. 164), tbe city treasurer was authorized to execute deeds for all lands sold for taxes levied by tbe president and trustees of tbe town of Milwaukee as theretofore incorporated, which deeds were to have tbe same force and effect as deeds given on tax sales under tbe charter. It is true, this provision does not say, in express words, that tbe city treasurer should execute deeds where tbe lands bad been sold by tbe collector of tbe “ Town of Milwaukee on the west side of the river;” but can there be a rational doubt that tbe intention was to confer that power in those cases ? As tbe two corporations bad been united in 1839, and thereafter were known by tbe name of tbe new corporation, nothing was more natural than that tbe legislature, in authorizing tbe city treasurer to execute tax deeds in all cases where sales bad theretofore been made by either of the old corporations, should use tbe language it did in this provision. Tbe president and trustees of the town of Milwaukee, became tbe legal successor to tbe two old corporations, tbe custodian *470of their books and papers, tbe owner of their moneys and property, and clothed with their police and governmental powers and privileges. And therefore the legislature, in authorizing the city treasurer to give certificates of redemption, and to execute deeds for all lands sold for taxes levied by the president and trustees of the town of Milwaukee, must be deemed to have conferred upon that officer the power to execute the deed in this case. Eor we cannot doubt that the legislature intended to cloth him with full authority to execute tax deeds in all cases of sales theretofore made by any corporation to which the town of Milwaukee had become the successor.

There is nothing in the evidence that shows that the grantee in the tax deed was in possession of the land sold in January, 1889, as a vendee. The only proof upon that point is the testimony of the defendant below, that he had been in possession of the premises sometime previous to the commencement of the suit; that he derived possession from Paul Burdick, who had occupied them for about ten years to his knowledge, and, as he had been informed, much longer; and that Burdick claimed to have gone into possession under an agreement with Kilbourn for the purchase of them. This testimony is quite too indefinite and uncertain to authorize us in saying that Bur-dick, the grantee in the tax deed, was in- possession of the land in 1838 under a contract with the owner to purchase it.

The last objection is, that section 123, chap. 15, does not apply to a deed executed by the officer of a city, but only to those conveyances executed by the clerk of the board of supervisors. This is contrary to the construction which has uniformly been placed upon that section, and inconsistent, we think, with the plain intention, purpose and policy of this enactment. We have no doubt that the circuit court was right in holding that the statute of limitations had run upon this deed.

The judgment of the circuit court is affirmed.