Page:Federal Reporter, 1st Series, Volume 6.djvu/37

 PECK V. COMSTOCK. 25 �decisions of the supreme court before the statute was passed requring notice to be given on application for a second deed, the defendant would have been entitled to just such a deed aa this, and it would have conveyed a title in fee to the land. The statute was passed requiring notice of the application to be given, and certain other formalities to be observed which were not observed in this case, and the non-observ- ance of which it is conceded rendered the deed void in fact. But it cannot be likened to a case where there is a total want of power to issue a deed. If it were possible to concoive dif- ferent degrees of voidness, it seems clear that the deed is no more void in this case than one where there bas been no assessment, as in Marsh t. The Supervisors, or where there bas been no notice of sale of the land, or where the land bas been sold to raise moneys in part that constituted no por- tion of thetax levied, as in Milledge y. Coleman, 47 Wis. 184, where itwas held that the statute run upon the tax deed. >In ail those cases it was not possible that there could be any valid tax deed on the sale, while here there could have been, as the proceedings up to and including the sale were ail reg- ular; and if the statute runs in those cases it is evident that it does in this. �In that case, which is the last expression of the supreme court on the question, the court say: "In the very recent case of Oconio Company v. Jerrard, 46 Wis. 317, the effect of the tax deed where the statute had run was very fully con- sidered. In that case. there was no pretence that the tax for vi'hich the deed was issued proceeded upon a regular, fair, and equal assessment of the property to be taxed. A more fundamental and fatal defect in the tax proceedings than this could not well exist since a valid assessment is the foun- dation of the tax. In answer to the argument that the statute was not intended to apply to such a case, and that the deed could be impeached for a radical defect, the chief justice uses this language: 'The respondents had their day to impeach the tax proceedings and avoid the tax deed; then they might have said that the groundwork was so defective that there was no tax. This they did not then do, and they ��� �