#### HENRY MITCHELL, Plaintiff in Error, *vs.*THEODORE L. PILLSBURY, Defendant in Error.

ERROR TO RACINE CIRCUIT COURT.

A tax *lawfully*assessed upon land conveyed by deed, at the time of conveyance, which, the covenantee was obliged to pay in order to prevent a sale of the land, or to redeem it after a sale had taken place, and which he had actually paid, constitutes a breach of a covenant against incumbrances.

A tax, to be an incumbrance, such as would constitute a breach of a covenant against incumbrances, must be a lawful tax, legally levied, upon a lawful assessment. *

In an action of covenant against incumbrances, where the breach is assigned upon an outstanding tax, or tax and sale therefor, a variance between the description of the premises contained in the deed, and that contained in the assessment roll, is immaterial, provided the same land is adequately and particularly described in each, though by different words.

Chapter 12S, section 11, providing for one assessor for the city of Racine, instead of five, one for each of the five wards, as required by the original charter, was intended to assimilate the duty of the assessor, as nearly as possible, to that of the town assessors, and to have their duties uniform, in regard to the certificate attached to their return; and a certificate made by him in the form of that required of the town assessors (in other respects answering to the charter) is sufficient, and such as is required by law.

The making oath to such a certificate, when nio oath is required by law, does not vitiate it, provided it be in other respects sufficient.

This case was an action of covenant against incumbrances, originally brought before a justice of tbe peace, by tbe plaintiff in error against tbe defendant in error, and appealed to tbe Circuit Court. At tbe October term, A. D. 1855, tbe plaintiff obtained judgment, wbicb was reversed on error at tbe last June term of tbis court, and tbe cause was remanded for further proceedings. At tbe October term, 1856, of tbe Eacine circuit, tbe cause came on again for trial upon new pleadings filed by leave of tbe court.

Tbe declaration was in covenant upon a deed executed by tbe defendant to tbe plaintiff, June 11, 1855. The breach assigned *408was upon a covenant against incumbrances, and consisted in tbe non-payment of certain taxes levied on tbe premises in tbe year 1854. Tbe plea was, *non infregit conventionem.*Tbe cause was tried by tbe court, a jury having been waived.

To maintain tbe issue on bis part, tbe plaintiff gave in evidence a deed executed by tbe defendant and wife to tbe plaintiff, June 11, 1855, conveying certain premises described therein as follows:

“ All those certain pieces or parcels of land situate in tbe city and county of Racine, and state of Wisconsin, known, and described as follows, to wit: Tbe west third of tbe east half, and tbe east third of lot No. 2, in block No. 18, according to tbe original plat of the village (now city) of Racine, made by Moses Yilas, surveyor, and recorded in tbe office of register of deeds of tbe county of Racine.”

And in and by tbe said deed the defendant covenanted, that at tbe time of tbe delivery thereof be was well seized of tbe premises of an indefeasible estate of inheritance, in fee simple; that tbe same were free and clear from all liens and incumbran-ces whatever, except a mortgage for tbe sum of three hundred dollars, executed by Thomas Wright and wife, March 28, 1853, to Julia Ann Smith, and also except a certain other mortgage executed by tbe defendant to James H. Hinds, administrator, foi tbe sum of one thousand dollars; also a covenant for quiet enjoyment, &c.

The plaintiff then offered in evidence tbe original village or city plat, to show tbe width of lot 2' in block 18 from north to south, which was objected to, but tbe objection was overruled and tbe evidence admitted, from which it appeared that said lot 2 is 60 feet in width from north to south, and 120 feet from east to west.

Tbe plaintiff next offered in evidence tbe original assessment roll of the city of Racine for tbe year 1851, with tbe assessor’s return thereto, which was in words and figures following, to wit:

“ *Oity of Hacine, June*80, 1854.

“ I do certify that I have set down in tbe' foregoing assess*409ment roll all tbe real estate situated in tbe city of Eacine, liable to be taxed according to my best information, and that with tbe exception of those cases in which the value of the said real estate has been fixed by affidavit/ made pursuant to law, I have estimated the same, at what I believe to be the true cash value thereof; that the said assessment roll contains a true statement of the aggregate valuation of the taxable personal estate of each and every person named in said roll as nearly as I could ascertain the same, and excluding such stocks as are otherwise taxable. And that with the exception of those cases in which the value of such personal estate has been sworn to by the owner, possessor or agent, I have estimated the same at its true cash value, according to my best information and belief.

“ W. Beswick, *City Assessor.*

“ Subscribed and sworn before me this 30th day of June, A. D. 1854. . Isaac Harmok, *Notary Public"*

And offered to read from said roll the following items which appeared therein:

Kesident Owners. ¡W- | Lot | BTfc. T.Wrighfc’s Estate. J } East 1-2 j I j 18 “ « j (el-2n20fc j 2 J 18 Value of } Valuation of j Value of each Lot. | alllots. | Per. prop. $500 j 50 j

To the reading of which the defendant objected.

1st, Because the description of the property proposed to be read is different from that described in the deed.

2d. Because the return of the assessor is not in accordance with the city charter and the law of the land.

The circuit judge overruled the first objection, but sustained the second, and rejected the evidence, to which the plaintiff excepted. This evidence being essential to the plaintiff’s recovery, and no further evidence being offered, the court directed a judgment of nonsuit to be entered against tbe plaintiff. The plaintiff excepted to these several rulings in the court below, and thereon has brought the case in error to this court.

The only point really in controversy, and presented for the consideration of this court, was the sufficiency of the return, or *410certificate of tbe assessor of tbe city of Eacine to tbe assessment roll of 1854.

*J. W. Carey,*for tbe plaintiff in error,

insisted that tbe return of tbe assessor was a substantial requirement with the statute, and be cited tbe several provisions relating to tbe subject. *Charter of Racine City, Sess. Laws, June,*1848, *p.*94, § 38 ; *Sess. L.*1851, *chap.*128, § 11; *R. S. chap.*15, § 33.

*Ira C. Paine,*for tbe defendant in error,

contended that tbe assessment of 1854 was illegal, and that, therefore, tbe tax based thereon, and alleged as an incumbrance upon tbe premises,' was no incumbrance; that tbe return of tbe assessor was, not in compliance with tbe statute; that it did not purport to contain *all*tbe taxable property of the city; that-the certificate was not in accordance with tbe charter, and though sworn to, was not an affidavit such as tbe charter required. He cited the same provisions of tbe statute as before referred to, and to which reference is made in tbe opinion of tbe court.

*By the Court,*

WhitoN, C. *J.*

We think that tbe nonsuit in this case was wrongly ordered.

There can be no doubt, we suppose, that if there was a tax lawfully assessed upon tbe land .at the time of tbe conveyance, which the- covenantee was obliged to pay, in order to prevent a sale of tbe laud, or to redeem it after a sale bad taken place, and which be bad actually paid, tbe .covenant. against incumbrances was broken.

Indeed, this does not appear to be disputed by tbe counsel for tbe defendant in error; tbe only question being, whether there was,, in fact, such a tax lawfully existing.

■ To establish tbe affirmative of this proposition, tbe plaintiff in error offered in evidence tbe assessment roll of the city of Ea-cine, for tbe year 1854, with tbe certificate or affidavit of tbe assessor.

*411To the introduction of this evidence, tbe. defendant in error objected, for the reason: 1st. Because the land conveyed in the deed was not described in the assessment roll, and, 2d. Because the return of the assessor was not in accordance with the charter of the city of Racine.

The judge overruled the first objection, but sustained the second. We think the judge was clearly right in overruling the first objection. The description of the land in the assessment roll is different from the description contained in the deed; but it is quite apparent that the same lapd is described in each. *Id cerium*est, *quod cerium reddi potest.*

But we are of the opinion that the judge erred in rejecting the evidence offered for the alleged reason that the certificate or affidavit of 'the assessor was not in accordance with the statute-of the state. The charter of the city of Racine *(Sess. L.*1848, *p.*81, § 16), provided for an assessor for each ward, while section 38 provided that the assessment roll should be returned to the clerk in the month of May, with an *affidavit of*the assessor that the assessment roil comprised all the real and personal property liable to taxation in the ward for which he was elected.

The Revised Statutes which went into effect in 1850, provide *{chap.*15, § 33) that assessors shall attach a *certificate*to the assessment roll, like the certificate or affidavit which was attached to the assessment roll which was offered in evidence in this case. The session laws of 1851 *{chap.*128, § 11) provide that there shall be but one assessor for the city of Racine, and that his duties shall be the same as provided for in the act incorporating the city; and as town assessors have, except that it shall be his duty to assess all the taxable property in said city, and complete his assessment roll during the months of May and June of each year, and deliver the same to the clerk. The act last above referred to, contains other provisions relating to the duty of the assessor of the city, but they do not appear to relate to the matters involved in the decision of the judge.

It is contended by the counsel for the plaintiff in error, that the act of 1851, before referred to, provides that the duty of the assessor in regard to the certificate, shall be the same as that of *412town assessors as fixed in tbe clause of tbe Revised Statutes, to wbicb we bave referred, or if tbis is not tbe case, tbat by mating oatb to tbe certificate, tbe assessor substantially complied with tbe requirements of tbe original charter, and also with tbe Revised Statutes. It will be seen that a literal compliance with tbe provisions óf tbe Revised Statutes in relation to tbe duty bf town assessors, and'with tbe provision contained in tbe original charter of tbe city in relation to tbe city assessors, is impossible, unless, indeed, tbe assessor should make tbe affidavit as required by tbe charter, and a certificate, as'town assessors are required to do by tbe Revised Statutes; and we cannot suppose tbat it was tbe intention of tbe legislature to impose this duty upon him. We are inclined to think tbat it was tbe intention of tbe legislature to assimilate the duty of tbe city assessor to tbat of tbe town assessors as near as possible, so as to bave tbe duties of these officers uniform. Tbe certificate wbicb was offered in tbis case was therefore tbe one which'it was tbe duty of tbe assessor to make, and should have been so held by tbe circuit judge. Tbe fact tbat tbe assessor made oatb to it, cannot bave changed its character. It was still a certificate, and should bave been so regarded.

It follows tbat judgment of’ tbe Circuit Court must be reversed.

.Judgment reversed, with costs.