1. Under section 5 of chapter 138 of the General Laws of
Wisconsin, of 1861, providing that
"No action shall be commenced by the former owner or owners of
any lands, or by any person claiming under him or them, to recover
possession of land which has been sold and conveyed by deed for
nonpayment of taxes, or to avoid such deed, unless such action
shall be commenced within three years next after the recording of
such deed,"
land is to be regarded as having been sold for nonpayment of
taxes; although the sum to raise which it was sold included five
cents for a United States revenue stamp, to be put, and which was
put, on the certificate issued to the purchaser on the sale.
2. A deed on a tax sale recites that "S. A. Coleman, assignee of
Oconto County," has deposited certificates of sale showing that
five parcels, each of which sold for so much, were sold "to the
said Oconto County, and by its treasurer assigned to S. A. Coleman"
for so much "in the whole," the total being the sum of the five
several sums. The statute, c. 50, sect. 22, of the General Laws of
Wisconsin, of 1859, prescribes a form of deed, and provides that it
shall be "substantially" in that or "other equivalent form,"
showing that the land was sold for a sum named "in the whole."
Held that the deed is in substantial compliance with the
form prescribed.
3. A sheriff having possession of property under a writ of
attachment is not bound by the judgment in a replevin suit to which
he was not a party, and in which he was not served with process,
and did not appear, and which he did not defend, although his under
sheriff, as an individual, was a party to the suit.
4.
Quaere are the waters of the Menominee River, which
is the boundary between Michigan and Wisconsin, within the
concurrent jurisdiction of both Wisconsin and Michigan.
5. Although there was no general verdict in this case, and no
special verdict in any form known to the common law, and no waiver
in writing of a jury trial, and no such finding of the court below
upon the facts as is provided for by sec. 649 of the Revised
Statutes, this Court, on a written stipulation filed here by the
parties, agreeing upon the facts, reviewed the case on a writ of
error, reversed a judgment below for the defendant, and directed a
judgment for the plaintiff.
The facts are stated in the opinion of the Court.
Page 106 U. S. 380
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This suit was brought in a court of the State of Wisconsin, by
Peter W. Geekie, Sheriff of Oconoto County, Wisconsin, and William
Klass, citizens of Wisconsin, against the Kirby Carpenter Company,
an Illinois corporation, and was removed into the Circuit Court of
the United States for the Eastern District of Wisconsin, before
answer. The cause of action set forth in the complaint was that the
plaintiff Klass was the owner of certain saw logs lying in the
waters of the Menominee River, in Oconto County, Wisconsin; that in
April, 1876, the plaintiff Geekie, as such sheriff, levied on and
attached said logs under a writ of attachment issued against said
Klass by the circuit court of said county; that the defendant, by
its employees, took, in Wisconsin, a large quantity of saw logs
from the sheriff, and converted them to its own use, to the value
of $8,500, and that the sheriff expended $940 in endeavoring to
safely keep the logs so wrongfully taken, and as increased expense
in keeping what logs the defendant did not succeed in taking. The
claim made is for treble damages, with interest. The answer sets up
that the logs were not the property of Klass, but were the property
of the defendant; that whatever the defendant did in regard to the
logs was done under a writ of replevin issued in a suit brought by
it, as plaintiff, in the Circuit Court for Menominee County,
Michigan, to the sheriff of that county, commanding him to take
said logs and deliver them to it, and that said sheriff took said
logs into his custody under said writ in said County of Menominee,
in the State of Michigan, and delivered them to said company.
The case was tried before a jury. The record states that the
jury "rendered a special verdict in answer to the questions
propounded by the court, said questions and the answers of the jury
thereto being as follows." There is no other or further special
verdict than the eight questions and answers which
Page 106 U. S. 381
then follow, and there is no general verdict for either party.
Afterwards, the plaintiffs moved the court "upon the special
verdict," and on "the records and evidence in said cause," "for
judgment in their favor for $6,791.56, with interest at the rate of
seven percent per annum from April 24, 1876, and costs." The
defendant also moved for judgment in its favor on the "special
verdict," "and because in law the plaintiffs established no cause
of action." The court ordered judgment in favor of the defendant
and overruled the motion of the plaintiffs for judgment in their
favor. Judgment was rendered for the defendant, against the
plaintiffs, for $186.02, costs. This writ of error is brought by
the plaintiffs to review and reverse this judgment.
At the trial, as appears by the bill of exceptions, the
plaintiffs, to show title in Klass to the logs, offered in evidence
a tax deed from the State of Wisconsin and Oconto County to one S.
A. Coleman, dated and acknowledged April 27, 1867, and the
certificate of its record endorsed on it, showing that it was
recorded in the office of the register of deeds for said county, on
the same day. The defendant objected to the reception of the deed
in evidence(1) because it was not in the form prescribed by
statute; (2) because it was not executed and acknowledged as
required by law; (3) because it was void upon its face. The court
reserved its rulings on said objections, and received said deed and
certificate in evidence subject to said objections. Like objections
and a like ruling were made in respect to a certified copy of the
record of said deed, showing the date of its recording. The deed
covered 79 58/100 acres of land in section 13, in town 33, of range
22, and 120 acres in section 14, in town 33, of range 22, being
five several tracts, all in Oconto County. The sale was for $12.20,
which was the amount of the taxes and costs of sale. The plaintiffs
then proved that Klass purchased from Coleman the timber standing
on the premises described in the deed; that all the logs in
controversy were cut by Klass from the premises during the winter
of 1875 and 1876, and put into the river; that the premises
remained vacant and unoccupied during the whole of the three years
next after the recording of the deed; that the logs were held by
Geekie, as sheriff, under a regular and
Page 106 U. S. 382
valid attachment and levy, and that the company claimed to own
the logs and sought to take them from the custody of Geekie. After
the plaintiffs had rested, the defendant offered to show by
certified copies of the records from Oconto County that the county
treasurer of that county, in making the sale of the lands on which
the said tax deed to Coleman was based, added to the amount of all
legal taxes and charges for which each of said tracts was liable to
be sold the sum of five cents to pay for a United States revenue
stamp to be placed on the certificate issued to the purchaser on
such sale; that said illegal excess of five cents was included in
the amount for which each one of said tracts was sold, and that a
five-cent United States internal revenue stamp was affixed to each
one of said certificates of sale. The plaintiffs objected to the
reception of said evidence as incompetent and immaterial, because
said tax deed was regular and valid on its face, and had been
recorded more than three years before the commencement of the
action and the cutting of the timber. The court reserved its ruling
on said objection until the close of the case, and received said
testimony subject to said objection. It was then admitted by the
plaintiffs that the facts relative to said sale were as the
defendant offered to show them to be, but not waiving their
objection to said evidence, or consenting to its being received.
The defendant then gave evidence showing that it owned in fee
simple at the time the tax deed to Coleman was executed and
recorded, the premises from which said timber was cut. After the
close of the evidence, the questions to be answered by the jury
were submitted to them by the court, and they were answered by the
jury. The bill of exceptions states as follows:
"Both said plaintiffs and said defendant filed motions for
judgment on the pleadings, records, and evidence in said cause,
and, upon the argument of said countermotions and said objections
to testimony reserved, the court overruled said defendant's
objections to the admissibility of said tax deed in evidence, and
said plaintiffs' objection to said defendant's testimony showing
the illegal excess of five cents in the amount for which each of
said tracts of land was sold by said county treasurer, and
overruled said plaintiffs' motion for judgment and ordered judgment
for said defendant; to each of which
Page 106 U. S. 383
said rulings against said plaintiffs, said plaintiffs then and
there duly excepted."
To obviate any objection that this Court could not review the
judgment in this case because there was no general verdict of the
jury, and no special verdict in any form known to the common law,
and no waiver in writing of a jury trial, and no such proceeding of
the court below upon the facts as is provided for by section 649 of
the Revised Statutes, the parties have filed in this Court a
written stipulation, agreeing
"that the facts appearing from the special verdict and stated by
the bill of exceptions to have been proved, shall be taken and
considered as the facts in this case for all purposes, and as fully
as if they had been specifically found by the circuit court,"
and
"that the circuit court submitted certain questions to the jury
by agreement of the parties, and that the other facts were to be
found and stated as shown by the bill of exceptions, and that upon
the whole case, as thus shown, judgment was to be pronounced by the
court below, as they should determine the law."
The ground upon which the circuit court overruled the objection
of the plaintiffs to the testimony on the part of the defendant to
show the illegal excess of five cents in the amount for which each
of the tracts of land was sold, was that, in being sold to raise
the five cents, the land was sold for that which was not a tax;
that the amount assessed against the land for a tax was less than
the amount for which it was sold; that although a tax was included
in that amount, there was also included in it that for which the
land could not be sold, and that this fact deprived the officer of
the power to sell and made the tax deed void.
The statute of Wisconsin applicable to this subject is found in
chapter 138 of the General Laws of 1861, secs. 5 and 6:
"SEC. 5. No action shall be commenced by the former owner or
owners of any lands, or by any person claiming under him or them,
to recover possession of land which has been sold and conveyed by
deed for nonpayment of taxes or to avoid such deed, unless such
action shall be commenced within three years next after the
recording of such deed."
"SEC. 6. The limitation for bringing actions prescribed in
the
Page 106 U. S. 384
last preceding section shall not apply . . . where the taxes for
the nonpayment of which the land was sold and the tax deed executed
were paid prior to the sale, or where the land was redeemed from
the operations of such sale, as provided by law, nor where the land
was not liable to taxation."
The sole question presented under these provisions is whether
the land in this case can be said not to have been sold for
nonpayment of taxes, because in the $12.20 for which it was sold
was included 25 cents for the five stamps, in addition to $11.95
for taxes proper. It is admitted that the land could not properly
be sold to raise the five cents as a tax, and that, if the question
had been raised on behalf of the original owner of the land in a
suit commenced within three years next after the recording of the
deed on the sale, he could have had relief against the sale; but it
is contended for the plaintiffs in error that the lapse of the
three years prevented the questioning of the validity of the deed
because of the irregularity complained of. We are of opinion that
the circuit court erred in its construction of the statute. The
exceptions in section 6 do not apply to this case, and the land was
sold for nonpayment of taxes, although an improper item was
included in the amount for which the sale was had. It matters not
whether such item was five cents for a revenue stamp, or an illegal
excess for fees, or any other illegal excess. The statute applies
whenever there has been an actual attempt, however defective in
detail, to carry out a proper exercise of the taxing power. As
against the grantee in the tax deed the statute puts at rest all
objections raised, after the time specified, against the validity
of the tax proceeding, from and including the assessment of the
land to and including the execution of the deed. If the deed is
valid on its face, and purports to convey the land on a sale for
the nonpayment of taxes, it is, during the three years,
prima
facie evidence of the regularity of the tax proceeding, and,
after the statute has run in favor of the grantee, the deed becomes
conclusive to the same extent. The general authority of the taxing
officers and the liability of the land to taxation having existed,
there was no want of authority to put the taxing power in motion.
That being so, the lapse of time establishes conclusively the
validity of the tax and of the sale, as
Page 106 U. S. 385
against the irregularity in question. There having been
jurisdiction, all error was conclusively barred by the statute.
This construction is that held by the Supreme Court of Wisconsin in
regard to this statute in
Oconto County v. Jerrard, 46
Wis. 317, and
Milledge v. Coleman, 47 Wis. 184, and it is
said, and correctly, in the latter case, that that is the view
which has been uniformly taken of that statute by that court, and
that to adopt a contrary view would disturb numerous titles. Such
construction was therefore always a rule of property, in respect to
land, in Wisconsin, and is one which this Court will follow.
Suydam v.
Williamson, 24 How. 427. In
Milledge v.
Coleman, the illegality alleged was the including of five
cents for a United States revenue stamp in the amount for which the
land was sold. That case was decided some four months after the
decision in the present case was made by the court below.
The deed in question was not open to the other objections taken
to it at the trial. One of those objections was that the deed was
not substantially in the form prescribed by statute or any
equivalent form, and was void upon its face. The form is given in
chapter 50, sec. 22, of the General Laws of Wisconsin, of 1859, and
the statute says that the deed "shall be substantially in the
following or other equivalent form." There is no doubt that the
form must be substantially pursued, or the deed will be invalid.
Part of the form is a recital that the purchaser or his assignee
has deposited a certificate, whereby it appears that certain lands,
describing them, were, for the nonpayment of taxes, sold by the
officer named at public auction at a place and time named, to the
said purchaser, for a sum named, "in the whole, which sum was the
amount of taxes assessed and due and unpaid" on said tracts of
land, etc. The deed in the present case recites that "S. A.
Coleman, assignee of Oconto County," has deposited five
certificates, whereby it appears that five certain parcels of land,
describing them, three containing 40 acres each, each sold for
$2.43, one containing 39 58/100 acres, sold for $2.43, and one
containing 40 acres, sold for $2.48, were, for the nonpayment of
taxes, sold by the officer named at public auction at a place and
time named, "to the said Oconto County, and by its treasurer
assigned to S. A. Coleman, for the sum of twelve dollars and twenty
cents, in
Page 106 U. S. 386
the whole, which sum was the amount of taxes assessed and due
and unpaid" on said tracts of land, etc.
The objection made is that the recital is not that the lands
were sold for so much in the whole, but that they were sold "to the
said Oconto County, and by its treasurer assigned to S. A.
Coleman," for so much in the whole; that the words, "the sum of" in
the recital relate to the word "assigned;" that the meaning is that
the lands were assigned to Coleman for the $12.20 in the whole, or
were sold and assigned for that sum in the whole, and not that they
were sold for that sum in the whole. The circuit court held that it
clearly enough appeared, taking the whole deed together, for what
sum in dollars and cents the land was sold in the whole, as
required by the statute, and that, taking the statement as to the
$12.20 with the preceding statement as to the sum for which each
parcel of land sold, the inference was irresistible that the $12.20
was the amount for which the land was sold in the whole, for the
nonpayment of taxes. We think this view was correct. A like
construction was given to a recital in the same language, by the
Supreme Court of Wisconsin, in
Milledge v. Coleman, ubi
supra. It is manifest that the words, "and by its treasurer
assigned to S. A. Coleman," are to be read as if they were in a
parenthesis. In connection with the prior words, "Whereas, S. A.
Coleman, assignee of Oconto County, has deposited." etc., they are
put in to indicate that Oconto County was the purchaser, and
Coleman was its assignee of the purchase by assignment from the
treasurer of the county. Everything required by the statute as to
form is found in the deed, with added facts as to the
assignment.
The objection as to the form of the acknowledgment of the deed
does not seem to be insisted on by the defendant in error. We think
the circuit court was correct in its ruling that the acknowledgment
was in proper form. The same form was upheld as proper by the
Supreme Court of Wisconsin in
Milledge v. Coleman, ubi
supra.
The defendant offered in evidence at the trial a copy of a
judgment in an action in the Circuit Court for the County of
Menominee, Michigan, in which the Kirby Carpenter Company
"was plaintiff, and the Menominee River Manufacturing
Page 106 U. S. 387
Company, Charles J. Ellis, and Millard F. Powers were
defendants, in which action a writ of replevin was issued to the
sheriff of said county commanding him to forthwith take into his
custody the goods and chattels therein mentioned, which were the
logs in controversy, and deliver them to said Kirby Carpenter
Company, which action was commenced on the 31st day of May, 1876,
and process therein served on said parties therein named as
defendants on said day, and in which action judgment was entered as
by default against the defendants therein named on the 24th day of
September, 1878, adjudging the title to said logs to be in said
Kirby Carpenter Company."
The plaintiffs objected to the admission of said record in
evidence as incompetent and immaterial "because neither of the
plaintiffs in this action were parties to said action." The court
reserved its ruling upon said objection and received said testimony
subject to said objection. The record does not show that the
objection was afterwards either overruled or sustained. As the
court held that Coleman acquired no title under the tax deed, it
was unnecessary for it to make any ruling as to the effect of the
judgment in the replevin suit. But under the stipulation so made in
this Court, the question is here to be passed upon.
The bill of exceptions states that the defendant showed that the
Millard F. Powers named as one of the defendants in said replevin
suit was the Undersheriff of Oconto County; that process in said
suit was served on said Powers on an island in the Menominee River,
near its mouth, on the Michigan side of the main channel of said
river, near the head of which island are situated what are called
the dividing piers, and that at the time of the service of said
process upon said Powers, he was on said island assisting the
plaintiff Geekie in his endeavors to retain said logs under said
writ of attachment under which they were levied on by said Powers;
that all of said logs that were taken from said plaintiffs, after
the issuing of said writ of replevin, were taken by said sheriff
and his posse, acting under the authority of said writ; that not to
exceed twenty of said logs came to the possession of said defendant
before the issuing of said writ of replevin, and that the point in
said Menominee River at which said dividing piers are located, and
at which
Page 106 U. S. 388
said defendant took from said Geekie said logs, was on the
Michigan side of the main channel of said river.
The bill of exceptions states that the plaintiffs showed that
Geekie, by and through Powers, his undersheriff, levied on said
logs on April 24, 1876, in the Menominee River, about one mile
above said piers; that the piers were managed and controlled by the
Menominee River Manufacturing Company, a corporation; that Powers,
after making the levy, remained in charge of the logs for some
days, and then turned the writ over to Geekie, the sheriff, on or
about May 9, 1876, it not being shown on the trial that the
defendant had notice of that fact; that the defendant claimed to
own said logs and sought to take them from the custody of said
sheriff, as they passed through said dividing piers; that from the
time they commenced running through said piers until they had all
passed through, said Geekie, and others acting for and under him,
and parties acting for and under the direction of the defendant,
were struggling with each other for the possession of the logs;
that the Menominee River runs between the states of Michigan and
Wisconsin; that when said logs were levied upon by said sheriff,
they were in a bend in said river and on the Wisconsin side of the
channel, and that the expense of executing said writ of attachment
by said sheriff, if he had not been interfered with by said
defendant, would have been not more than $240.
The questions and answers forming the so-called special verdict
were as follows:
"1st. Did the defendant take, or cause to be taken, from the
possession of the plaintiffs, and convert to its own use, the logs
in question, or any part thereof? Answer. Yes."
"2d. If you answer the preceding question in the affirmative,
then when were said logs so taken from the possession of the
plaintiffs? A. On the twenty-fourth day of April, 1876."
"3d. What quantity of logs, if any, were so taken and converted
to its own use by the defendant? A. 1,040,238 feet."
"4th. What was the value of the logs so taken and appropriated
by the defendant? A. Six dollars per thousand feet. . . ."
"6th. What was the amount of expenses necessarily incurred and
paid by the plaintiff Geekie in endeavoring to retain possession of
said logs? A. $538.14."
"7th. What number of days was the plaintiff Geekie
necessarily
Page 106 U. S. 389
engaged in endeavoring to keep possession of said logs, and what
was the value of his service per day? A. Forty-nine days at three
dollars per day, $147."
"8th. What number of days was M. F. Powers necessarily engaged
in attempting to keep possession of said logs, and what was the
value of his services per day? A. Fifteen days at three dollars per
day, $45."
It is contended for the defendant in error that Geekie was
concluded by the judgment in the replevin suit, and that, although
he was not a party to it, the judgment against Powers, his
undersheriff, bound him. But it clearly appears from the foregoing
facts that Powers did not have possession of the logs when the
replevin suit was commenced, and that Geekie did. Powers was sued
as an individual. Geekie was not served with process in the suit,
nor did he appear in it or defend it, and, so far as appears, no
defense was made to it.
It is further contended for the defendant in error that the
conversion by the defendant took place in Michigan, and not in
Wisconsin, as alleged in the complaint, because it is shown that
the place where the defendant took the logs from Geekie was on the
Michigan side of the main channel of the river. This is not
equivalent to a finding that the taking was wholly or exclusively
in Michigan, so as to make, as against Geekie, a taking at a place
where the lien of the attachment did not exist. But aside from
this, the Menominee River being, as found, the boundary between
Michigan and Wisconsin at the
locus in quo, Wisconsin has,
by sec. 3 of the Act of Congress of August 6, 1846, c. 89,
concurrent jurisdiction with Michigan over the waters of the
Menominee River.
Klass having the general property in the logs and Geekie a
special property in them, and the logs having been taken by the
defendant from the possession of Geekie, who held them as sheriff
under the attachment against Klass, it was proper for both to join
in the suit. The damages found to have been sustained by each may
be added together and awarded to them as plaintiffs. The damages to
Klass are the value of the logs, 1,040,238 feet at $6 per thousand
feet, being $6,241.42. The damages to Geekie are the $538.14
expenses, less the $240, being
Page 106 U. S. 390
$298.14, extra expenses, and the $147 and the $45. The sum of
the whole to Klass and Geekie is $6,731.56. The date of the
conversion, found by the jury, was April 24, 1876. There appears to
be some confusion in the record. It is stated that the replevin
suit was commenced May 31, 1876; that all of the logs which were
taken from the plaintiffs after the issuing of the writ of replevin
were taken by the sheriff under that writ, and that not to exceed
twenty of such logs came to the possession of the defendant before
the issuing of said writ. Yet the jury found that the defendant
took all the logs or caused them to be taken from the possession of
the plaintiffs, and converted them to its own use, on the 24th of
April, 1876. But the attachment levy was made on the 24th of April
by Powers, and the record states that he remained in charge of the
logs for some days, and turned the writ over to Geekie on May 9.
The bill of exceptions states, however, that there was other
evidence tending to show the time of the conversion of the logs by
the defendant, and the manner in which the defendant and the
sheriff of Menominee County took possession of them. On the whole,
we think that as to the damages to Klass interest should be given
from the 24th of April, 1876, the date of conversion found by the
jury, and as to those to Geekie, interest should be given from the
bringing of this suit, November 21, 1876.
The judgment of the circuit court is reversed, with costs, and
the case is remanded to that court with directions to it to enter a
judgment for the plaintiffs for $6,731.56, with lawful interest on
$6,241.42 thereof from April 24, 1876, and with lawful interest on
$490.14 thereof from November 21, 1876, with costs, and it is
So ordered.