Leffingwell v. Warren/Opinion of the Court

This cause is brought here by a writ of error to the District Court of the United States for the District of Wisconsin.

In the Court below, Warren, the defendant in error, instituted an action of ejectment to recover the premises in controversy. Judgment was rendered in his favor. The defendant there is the plaintiff in error here.

The parties made an agreement as to the facts which is set forth in the bill of exceptions. It was thereby admitted upon the trial—

'That the plaintiff has a perfect chain of title to the land in question from the United States to himself; and that the defendant was in possession thereof at the time of the commencement of this suit; and that the land in suit is of the value of more than $2,000;

'That the County of Rock, on the 6th day of February, A. D. 1852, made and delivered to John M. Keep a paper purporting to be a tax deed of said premises, of which, and the certificate of acknowledgment, the following is a copy.'

(Here follow the copies mentioned, which it is unnecessary to insert).

'(The plaintiff, however, not waiving any objection to said tax deed, which may appear on its face, or which may be made to appear by any other facts or evidence in the case).

'That said deed was recorded in the office of the Register of Deeds for Rock County, where said land is situated, on February 6th, 1852 (subject to the objection, however, which is reserved by the plaintiff on the ground, that said deed is not so executed and acknowledged as to be entitled to be recorded); that immediately thereafter said Keep sold said premises to said defendant, and that said defendant immediately thereafter entered into possession of said premises, and has been in possession ever since.

'That the plaintiff, on the 29th day of February, 1848, that being the proper time to pay the taxes on said land, including the tax for the nonpayment of which said tax deed purports to be given, wrote a letter and sent it by mail to the County Treasurer of said Rock County, who was the officer authorized by law to demand and received all the taxes on said land, including the delinquent tax in question, stating that he wished to pay the taxes on a list of lands mentioned, including the land in suit, asking for a bill of the same, showing the amount that he might remit; that said Treasurer on the same day received said letter at his office, and answered it, inclosing a bill corresponding with the receipt hereinafter given, stating that the inclosed was the bill called for by plaintiff's letter; that thereupon the said plaintiff remitted said amount to said Treasurer, who received the same, and returned to said plaintiff the said receipt herein after set forth the same day; and that at the date of the receipt the Treasurer and the plaintiff supposed that all the taxes on said lands were included in said receipt; but the parties agree that the particular tax for which the land was sold and deed given was not found by said Treasurer, and not included in said receipt.

'That after the date of said payment and receipt no demand was made of said plaintiff for payment of said delinquent tax, nor had plaintiff actual notice that said tax remained unpaid until more than three years after the recording of the tax deed, but that the premises were duly advertised for sale as by law required, and that said deed was recorded as hereinbefore set forth. That the said delinquent tax tax and costs amounted at the date of the sale to $1981100. That on the 11th day of April, 1857, said plaintiff deposited with the clerk of the Supervisors of Rock County the sum of $7050100, being the full amount of sale, interest, and costs, to redeem said land mentioned in the said tax deed, and that the deposit still remains there, there being no other unpaid tax on said land at that time.

'The following is a copy of the receipt given by said Treasurer, mentioned above, viz.:

'TERRITORY OF WISCONSIN, ROCK COUNTY,

'TREASURER'S OFFICE,

'February 29th, 1848.

'Received of the different owners, per Catlin & Williamson, agents, $25 60/100, in full of the taxes charged for the year 1847, on the following tracts of land in the County of Rock, W. T., consisting of the following items of tax, to wit: county, town, common school, territorial revenue, and

DESCRIPTION.. Section. Town. Range. Acres. Value. County. Town. ols.

E. 1/2 of S. W. 1/4 34    1    11   80  160  54  165  42  --tal. Scho  --. $2

S. E. 1/4. 34. 1 11  160  320  108  230  84  --  --  5

Lot No. 2. 11. 4 12   32.56     97 32/100   19   49  29  --   --...

N. E. 1/4 of N. E. 1/4  3 4    11   40.44  170  34  32  20  29 --

Lot No. 1. 11. 4 12   55  165 36/100  33  83  50  --  --   1

S. W. 1/4 of N. W. 1/4  1 4    10   40  233  86  88  43  70 --

Lot No. 3. 15. 4 12   64.35    193 14/100  39  96  58  677 --

E. 1/2 of N. W. 1/4 14    4    11   80. 112 69  68  43  62        —