Page:Federal Reporter, 1st Series, Volume 6.djvu/35

 PECK V. COMSTOCK. 23 �BcNN, D. J. This action is brought by the complainant, Tvlio resides in Micbigan, to set aside and cancel a tax deed upon certain land lying in the county of Burnett, in the jitate of Wiseonsin, upon which the plaintiff holds a mortgage «xecuted by one William S. Patrick. The mortgage has been^ foreclosed, and the time of redemption has expired, but no sale has been made. The land was sold for taxes in May, 1874, for the taxes of 1873, and certificates of sale duly issued, which were afterwards duly and regularly assigned to the defendant, who, on May 31, 1877, the time for redeemirig the lands from sale having expired, took out a tax deed from the clerk of Barron county, in which the lands then lay, which deed was, however, irregular and void upon its face from being sealed with the clerk's private, instead of his officiai, seal, as the law requires. This irregular deed was acknowledged and recorded. On August 4, 1877, the defend- ant, Comstock, ascertaining that his deed was irregular, ap- plied to the clerk to have a new deed igsued, without, how- ever, complying with the statute, which requires notice of such application to be given by publication. The clerk thereupon issued a new deed, which, as a first deed, is strictly regular in form, and sufficient in ail respects to convey the title in the land to the defendant, aU the previous tax pro- «eedings being conceded and alleged in the complaint to be regular and valid ; but as a second deed it is irregular and void, because it does not recite, as the statute requires in such cases, the issuing of the previous irregular deed. The billis ■quite specifie in its allegations of the regularity of the tax proceedings up to the issuing of the deeds, perhaps for the pur- pose of showing that the deed sought tobe set aside con- stitutes a doud upon the plaintiff's title. It appears upon the face of the complaint that the time within which actions are aUowed to be brought under section 1210, Eev. St., to set aside or cancel a tax deed had expired when this actioii was brought; and the defendant demurs to the complaint on this ground, as well as that the facts set forth are insufficient to entitle the plaintiff to relief in equity. �The question for determination is whether or not the statute ��� �