#### Smith vs. Smith, impleaded with others.

The intentional omission of taxable property by the assessor, materially affecting the equality of taxation, and increasing the burden of the party complaining, will void the tax; but the unintentional omission of such property by the officer attempting in good faith to carry out the requisitions of the law, will not.

The legislature has power to prescribe the forms of tax proceedings, and, in matters of form, may declare what steps shall or shall not be essential to the validity of a tax sale or tax deed.

The provisions of ch. 22, Laws of 1859, requiring the defendant in an action by a tax title claimant under that act, to mate a deposit in certain cases, are valid. *'Wákél&y v. JOfieTiolaSj*16 "Wis., 588, followed.

In such, cases it is not sufficient that the answer alleges a deposit, but there must be proof and a finding of the fact, to sustain a judgment for the defendant.

An allegation in the complaint that the defendant has or claims an interest, &c. does not relieve him from proving that it is a *redeemable*interest; and the evidence must be the same as in other cases of disputed title. Dixon, C. J., dissents.

APPEAL from tbe Circuit Court for *Winnebago*County.

Action by tax title claimant, nnder chap. 22, Laws of 1859, commenced Sept. 15th, 1863. The complaint contains in tabular form a list of the lands on which plaintiff alleges that he has taken tax deeds, and to which he seeks to quiet the title &e., and opposite such description, the date of the tax sale, the amount for which the tract was sold, the amount paid for deed &c., and the *“ names of former owners and of those claiming under them f*and all the persons whose names are there *616given are made defendants. Opposite two of tile tracts (being lot 14, bl. 1, and lot 6, bl. 2, in the village of Menasha) the two first names in tbe list are *Mbridge Smith*and *Caroline J. Smith.*Said lots were sold April 10th, 1860, and the deed taken and recorded April 15th, 1863. The defendant *Caroline J. Smith*answered separately, first by a general denial; and as a further answer, alleges that at the time the tax deed was issued she was, and for a long time previous had been, and still is, the owner in fee simple of the two lots above mentioned; that she is a married woman, and was so at the time said tax deed was executed, and at the time of the tax sale, and that the time for her to redeem Said lots from said sale has not yet expired. As a third defense, said defendant alleges various irregularities in the tax proceedings, the nature of which will appear from the findings of the circuit judge, as hereinafter stated. The answer then alleges that the defendant has deposited with the clerk of said court the amount required by law for the redemption of the undivided half of said lot fourteen, and is ready to pay such portion of the costs and disbursements in this action as shall be just and reasonable. Prayer, that plaintiff be adjudged to release to defendant all his right and claim under his tax deed to the lots in question, &c.

On the trial, defendant objected to the introduction of any evidence for the plaintiff, on the ground that the complaint did not state a cause of action, and that ch. 22, Laws of 1859, was unconstitutional. Objection overruled. After the plaintiff had made a *prima facie*case, *Mbridge*Smith, as a witness for *Caroline J.*Smith, testified that she was, and for six years or more had been a married woman, and that she was his wife. *Question*: “ What interest has she now in the property in dispute?” Objection by plaintiff overruled. *Answer-.*“She owns the undivided half of lot 14 in fee simple, and has owned it since November 26th, 1860; she has owned lot 6 since the 26th of March, 1861, till May last, when she sold it, and has a mortgage interest in it.” The defendant then introduced evi-*617deuce tending to prove tbe alleged irregularities in tbe tax proceedings.

Tbe court found tbe issue of tbe tax deed to plaintiff &c., as alleged in tbe complaint, and also found tbe facts as to *Caroline J. /Smith’s*coverture, and ber ownership of said lots 6 and 14, as alleged in tbe answer. As to the alleged irregularities in tbe tax deed it found as follows: *“*1. *Elbridge Smith*was tbe resident bolder of said lots in tbe spring and summer of 1859, when they were assessed, and tbe assessor did not leave with him a written or printed notice informing him of tbe aggregate valuation which be bad put upon said lots. 2. Tbe papers in tbe office of the town clerk furnish no evidence that a notice was given by tbe town clerk of tbe town of Menasha, for tbe yeár 1859, of tbe meeting of tbe town board of equalization, to equalize taxes. 8. Tbe assessor of tbe town of Me-nasha, for tbe year 1859, did not make bis return of real property to tbe clerk of tbe board of supervisors until tbe 9th day of July ; be did not sign tbe return or in any manner authenticate the returns of tbe lands in tbe book or roll which contained tbe description of tbe lots in issue, that book or roll being a separate and distinct roll from tbe one in which be purports to make an affidavit of bis return. 4. Said assessor did not sign any return of real property to tbe clerk of tbe board, and did not sign tbe affidavit to said return, officially. 5. Tbe affidavit to tbe returns of tbe assessor bad no venue. 6. Tbe parcels of land involved were assessed in that year, 1859, to *Mbridge Smith,*who was then tbe owner of tbe same, and so appeared in tbe assessment roll of tbe town of Menasha, and the copy of said roll placed in tbe bands of the treasurer of tbe town, with tbe warrant of tbe town clerk attached, authorizing and requiring said treasurer to collect tbe taxes therein contained. 7. Said *Mbridge Smith*bad personal property, from which said taxes might have been collected by distress and sale of said property during tbe time said roll and warrant were in tbe bands of said treasurer for collection of taxes. 8. *618Said assessor made no returns of personal property for that year to tbe clerk of tbe board of supervisors, as required by sec. 39 of cbap. 167, Laws of 1859, and made no affidavit of any returns of personal property, and filed no statements of tbe listing of personal property, with tbe clerk of tbe board of supervisors of said county, as required by said section 39. 9. Tbe assessment roll of said town of Menasba was not delivered to tbe town clerk of said town till November 28th, or after, and a copy of tbe roll, with warrant of town clerk, was not delivered to town treasurer until December 21st, or after. 10. Tbe town treasurer did not sign any returns of delinquent taxes on tbe lands in question in this issue, or any other lands, to tbe county treasurer, and did not sign officially any affidavit of any returns, and tbe affidavit attached to said returns does not appear, either in tbe body of tbe same or tbe signature, to be the act or affidavit of tbe returns of tbe treasurer of said town, and tbe statement purporting to be an affidavit has no venue.” On these facts the court held that *Caroline J, Smith*bad a right to redeem tbe lots from tbe tax sale, which right would not expire until April 10th, 1865, and that she was entitled to judgment as demanded in her answer. Judgment accordingly ; from which the plaintiff appealed.

*Anson Ballard*and *Whittemore &*Weisbrod, for appellant,

contended, among other things, that tbe evidence as to tbe na* ture of the respondent’s interest in tbe lots in dispute, was not tbe best evidence, but tbe deeds to her should have been introduced. 2. A married woman has not *five*years after a tax sale for tbe redemption of lands in which she bad no interest *at the time of sale.*Secs. 20, 47, ch. 22, Laws of 1859. 3. If she has such a right, it does not apply to lands in which she bolds a mere mortgage interest. 4. Even if tbe respondent has still a right to redeem both lots, still tbe plaintiff may maintain bis action, and obtain a judgment protecting tbe right of redemption. Sec. 47 of tbe chapter under which tbe action is brought, provides for tbe discontinuance of tbe action *619only in the case of a minor. *Fxpressio unius, exclusio alterius. 5.*There is neither evidence nor finding of the fact that the respondent has made the required deposit. The irregularities in the tax proceedings cannot therefore be considered. 6. The findings as to respondent’s right to redeem &c., do not support the judgment, which upon those findings should merely have been one of dismissal.

*Mbridge Smith, contra,*as to respondent’s right to redeem at any time within five years after the sale,

cited sec. 20, ch. 22, Laws of 1859; Blackwell on Tax Titles, 496 *et seq.;*10 Peters, 1; *Jones v. Collins,*16 Wis., 594. As to the tax sale being rendered void by the irregularities in the tax proceedings, he cited E. S., ch. 18, secs. 61,71, 75, 93 ; Blackwell on Tax Titles, chaps. 8, 9, pp. 172, 176, 205-10, 345; id., pp. 80 *et seq.,*112 *et seq.; Jackson v. Shepard,*7 Cow., 91; *Sales v. Avis,*12 Ala., 617 ; *Qouverneur v. New Yorh,*2 Paige, 434; *Parker v. Peed,*9 Cranch, 64; *Fletcher v. Powell,*6 Wheat., 119; 7 Hill, 177; 4 í)enio, 71; 17 Wis., 556; 12 Yt., 668. The proper judgment was entered. Sec. 45, ch. 22, Laws of 1859.

*By the Court,*

Dixoít, C. J.

The intentional omission of taxable property by the assessor, materially affecting the equality of taxation and increasing the burden of the party complaining, will avoid the tax; but the unintentional omission of such property by the officer attempting in good faith to carry out the requisitions of the law, will not. *Weeks v. Milwaukee Co.,*10 Wis., 263; *Hersey v. Supervisors of Milwaukee Co.,*16 id., 185; *Dean v. Gleason,*16 Wis., 1. In this case the omissions may fairly be regarded as the result of mistake or accident. There is no evidence of bad faith or that the property was purposely omitted. The payment of the taxes cannot, therefore, be avoided on this ground. The other objections go merely to the form of the proceedings. They do not affect the ground work of the taxes, or show that they are necessarily inequitable or unjust. *Mills v. Gleason,*11 Wis., *496;**620*Warden v. Supervisors of Fond du Lac Co.,*14 Wis., 618 ; *Kellogg v. Oshkosh,*id., 629; *Miltimore v. Rock Co.,*15 Wis., 9 ; *Mills v. Johnson,*17 Wis., 601. The legislature have power to prescribe the form of proceedings in the assessment and collection of taxes, and, in matters of form, may declare what steps shall or shall not be essential to the validity of a tax sale or tax deed. *Smith v. Cleveland,*17 Wis., 556. In *Wakeley v. Nicholas,*16 Wis., 588, we held that the provisions of chapter 22, Laws of 1857, requiring a deposit &c., were but the application of equitable principles to actions brought under that act. This is such an action, and the defendant has made no deposit. At least the record shows none. She avers a deposit in her answer, but it is not proved. Assuming then her right to redeem within five years, which we do not decide, the-judgment must be reversed for this reason. She has not shown the taxes to be unjust and void in equity, nor any conditions of the act in which a deposit is not required, and she has shown no deposit; which last she must do before she can prevail in her defense, where the former grounds of objection do not exist.

There is another reason for holding the judgment erroneous. *Mrs. Smith's*proof of title is defective. It was by parol, was objected to and was clearly incompetent. Her counsel also relies on the allegation of the complaint that she owns an interest. But whether it is a redeemable interest or not does not appear aside, from the parol proof. It may be a contingent right of dower, dependent on her surviving her husband, in which case her right of redemption is very doubtful. My brethren think, therefore, that she should have introduced her paper title, and until she has done so and shown that she has a redeemable interest, they decline to determine whether the five years’ redemption clause is applicable to the case or not. Eor myself, I doubt whether she was obliged to give any proof of title. In actions of this nature, I am not clear that the interest averred in the complaint is not to be understood as a *621redeemable interest. Such is tbe theory of the action, which is commenced to cut off the right of redemption of the defendants ; and if they have no redeemable interest, it would seem that they could not properly be m ade parties.

Judgment reversed, and cause remanded for further proceedings according to law.