
    Whittlesey, Respondent, vs. Hoppenyan, Appellant.
    
      August 30
    
    
      September 18, 1888.
    
    
      (1, 2) Tax titles: When deed may be executed: Computation of time: Defective record: Limitation of actions. (3) Adverse possession. (4) Public lands: Town,-site: Patent to county judge: Division of county: Who to execute, trust: Quitclaim by beneficiary before execution of trust: Conveyance by trustee: Recitals: Presumptions.
    
    1. Lands sold for taxes being subject to redemption at any time within three years from the date of the certificate of sale, a tax deed executed September 4, 1869, upon a tax sale made September 4,1866, is void.
    2. Where a tax deed purports to be attested by two witnesses, an attempted record thereof showing but one witness is ineffectual and does not render available to sustain the deed the limitations contained in secs. 1188, 12IOd, 1210e, R. S.
    3. The defendant in ejectment had taken possession of the land, in the spring of 1S74, built a fence around it, and trimmed out the underbrush. The fence remained in 1876 and 1877, but in 1880 it had disappeared entirely; and there was no proof that the defendant had any further or other possession of the land until 1884. Held, that this was not a continual occupation and possession of the . premises for ten years, within the meaning of sec. 4211, R. S.
    
      4. .Land occupied as a town-site was patented, under sec. 2387, R. S. of U. S. to S. Gr., as judge of La Pointe county, in trust for the occupants of such town-site, “ and to Ms successors in trust as aforesaid.” After the entry of the land, but before the patent issued, a part of La Pointe county, including such town-site, had been organized into the county of Ashland. Afterwards the name of La Pointe county was changed to Bayfield county. Held:
    
    (1) The trust created was an official one pertaining to the office of county judge, although the name of the judge was inserted in the patent; and a conveyance in execution thereof was properly made by the judge of Ashland county, in which the land was situated, and not by the judge of Bayfield county.
    (2) A quitclaim deed of certain lots in the town-site, executed by one of the beneficiaries of the trust before he had received a conveyance from the trustee, would not prevent the trustee from conveying a valid title to such lots to another beneficiary.
    (3) A recital in the conveyance by the judge of Ashland county that it was made in consideration of the power vested in him by ch. 95, Laws of 1859 (which prescribed the procedure for executing the trust), shows that it was intended as an execution of the trust; and, in the absence of proof to the contrary, it will be presumed that the proceedings on the part of the trustee, which resulted in the conveyance, were in accordance with the statute.
    APPEAL from the Circuit Court for Ashland County.
    Ejectment for two lots in the town of Ashland, in the county of Ashland, according to the recorded plat of such town. These lots are portions of a larger tract of land, constituting the town of Ashland, which, on June 23, 1862, was patented bjT the United States to Schuyler Goffj as judge of La Pointe county, “in trust for the several use and benefit of the occupants of the town of Ashland according to their respective interests under said act of May 23, 1844, and to his successors in trust as aforesaid.”
    It is recited in the patent that the same was executed pursuant to the act of May 23, 1844, entitled “ An act for the relief of the citizens of towns upon the lands of the United States, under certain circumstances,” which will be found in 5 U. S.' Stats, at Large, 657. Sec. 2387, R. S. of U. S., contains the material portions of that act. The section is as follows: “ Whenever any portion of the public lands has been or may be settled upon and occupied as a town-site, not subject to entry under the agricultural preemption laws, it is lawful, in case such town be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judge of the county court for the county in which such town is situated, to enter at the proper land-office, and at the minimum price, the land- so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated.”
    The land was entered by Goff in 1856. Three persons only were the occupants of the town-site of Ashland and beneficially interested ip such entry and patent in trust. One of these was Asaph Whittlesey, then of Ashland, but later of Bayfield county, where he died in 1883. The other beneficiaries were George Kilbourn and Martin Beaser.
    In 1860 La Pointe county ivas divided, and the county of Ashland, in which the lots in question are situated, was created and organized. Laws of 1860, ch. '211. In 1866 the name of the county of La Pointe was changed to Bay-fi.eld. Laws of 1866, ch„ 146.
    In April, 1872, the county judge of Ashland county deeded to “Asaph Whittlesey, of Ashland county,” the lots in controversy. This deed, after reciting the name and office of the grantor, and the name and residence of the grantee, reads as follows:. “In consideration of the ponder vested in him by act of legislature of March 31, 1856, does, by these presents, grant, bargain, sell, and convey to the said party of the second, part, his heirs and assigns,” etc. The act of 1856 above mentioned is ch. 95 of the General Laivs of that year, and is entitled, “An act to authorize the county judges to perform and discharge the trust specified in an act of Congress approved May 23, 1844, viz.” (stating the title of the act of Congress referred to in the patent to Goff). Ch. 95, Laws of 1856, is substantially re-enacted in the Eevision of 1858, and stands as secs. 17 to 21, inclusive, of ch. 47, E. S. 1858. As indicated by its title, the act of 1S56 prescribes the procedure for executing the trusts created under the act of Congress of May 23, 1844, and for determining the interests of the respective beneficiaries in any patent issued under that act.
    On the trial the plaintiff introduced in evidence a tax deed of the lots in controversy, in the usual form, executed by the proper officer to Asaph Whittlesey, of Bayfield county, bearing date December 3, 1866, on a sale of the lots, September,, 1, 1863, for nonpayment of the taxes assessed thereon; also a conveyance of the same lots, executed in due form by Delia E. Whittlesey to the plaintiff, bearing date January 8, 1885. The plaintiff proved on the trial the death of Asaph Whittlesey in 1883, that Delia E. Whittlesey was his sole heir at law, and that the plaintiff is his widow.
    The defendant claimed title to the lots under a tax deed executed by the clerk of the board of supervisors of Ash-land county to him September 4, 1869, on a sale of the lots for the nonpayment of the taxes of 1866. The deed recites that such sale was made September 4, in that year. The plaintiff put in evidence the record of' such last-mentioned deed, which showed but one attesting witness to the deed.
    For the purpose of showing title out of the plaintiff, the defendant put in evidence a quitclaim deed of the same lots, executed by Beaser, another of the beneficiaries in the trust deed above mentioned, and his wife, to one Eode-linska, but did not attempt to connect himself with the title of Eodelinska. The defendant also proved that he paid the taxes upon said lots Tor several jmars after 1869, to the amount, including interest thereon, of $73.27.
    The cause was tried without a jury. The court found all the issues for the plaintiff, and ordered judgment accordingly for the plaintiff, upon payment by him to the defendant of the said $73.27,less the costs of the action, within ninety days, and that in default thereof the defendant should have judgment. Judgment was duly entered for the plaintiff in accordance with such direction. The defendant appeals therefrom.
    For the appellant there was a brief by Miles & Shea, and oral argument by J. J. Miles and E. F. Gleason.
    
    For the respondent there was a brief by Tomkins. Merrills & Smith, and oral argument by W. M. Tomkins.
    
   Lyon, J.

I. The defendant rests his claim of title to the lots In question solely upon his tax deed of September 4, 1869; and in order to sustain such deed he pleaded the several limitations contained in secs. 1188, 1210d, 1210e, 4211, 4212, 4215, R. S., and the several acts amendatory thereof. Such tax deed is void on its face, for the reason that it shows a tax sale of the lots on September 4, 1866, and the deed was executed September 4, 1869. Sprecher v. Wakeley, 11 Wis. 432; Lindsay v. Fay, 25 Wis. 460. The deed could not have been lawfully executed until the expiration of three years after the date of the certificate of sale, and of course that could not bear a date earlier than September 4, 1866. Laws of 1859, ch. 22, secs. 18, 25. The three years did not expire, and no deed on such tax sale could lawfully be issued, before September 5, 1869. The lots were subject to redemption September 4, 1869. Sprecher v. Wakeley, 11 Wis. 432, and note (sec. 11); Lindsay v. Fay, 25 Wis. 460.

Furthermore, the special limitations upon tax deeds, pleaded by the defendant in support of his deed, all com-menee to run from the recording of the tax deed. The tax deed upon which defendant founds his claim of title was never recorded, for it purports to be attested by two witnesses, whereas the attempted record of it shows but one witness. This is not an effectual record of the deed. Hence the limitations contained in secs. 1188, 1210d, and 1210e, R. S., are not available to sustain the defendant’s tax deed.

But the defendant further relies upon the ten years statute of limitation's prescribed by sec. 4211, R. S. Although the deed is void on its face, and was never properly recorded, it is still such an instrument as is contemplated blithe latter section. McMillan v. Wehle, 55 Wis. 685. Hence, if the defendant was in the continual occupation and possession of the lots in question, or of some part thereof, for ten jmars, claiming title under his tax deed, he has a good title to the lots by adverse possession. The proof on this subject is that the defendant took possession'of the lots in. the spring of 1874, built a fence around them, and trimmed out the underbrush. The fence remained in 1876 and 1877, but in 1880 it had disappeared entirely; and there is no proof that the defendant had any further or other possession of the lots until 1884. Yery clearly this is not such a continual occupation of the lots for ten years as will establish the defendant’s title thereto.

We conclude that the defendant has failed to establish title in himself to the lots in controversy.

II. We are now to inquire whether the plaintiff has proved title to the lots, for it is an elementary rule that the plaintiff in ejectment must recover (if at all) upon the strength of his own title, without regard to the weakness of that of his adversary.

1. The quitclaim deed executed by Beáser and wife to Eodelinska in 1855 is of no significance, because it does not appear that the grantors had any interest in the particular lots in controversy which they could convey and thereby divest the title of the trustee. True, Beaser was one of the beneficiaries in the trust deed to the county judge, but he could do no act which would prevent the trustee from conveying a valid title to the lots to another beneficiary. We dismiss this conveyance from further consideration.

2. It is claimed the proof fails to show that Asaph Whit-tlesey, of Ashland county, and Asaph Whittlesey, of Bay-field county, are one and the same person. Hence it is argued that the case fails to show that the ancestor of the grantor of the plaintiff was the beneficiary of the same name in the trust deed. We think the testimony negatives this position, and that it was satisfactorily proved on the trial that such ancestor and such beneficiary were one and the same person.

3. We do not attach any importance to the tax deed of 1866 to Asapli Whittlesey.

4. The next question is whether the county judge of Ash-land county became, by ihe division of La Pointe county and the erection of the county of Ashland, the successor of the county judge of La Pointe county in the trust deed, and as such authorized to convey the lots in controversy. We have no doubt whatever that the trust created by the patent to Schuyler Goff, judge of La Pointe county, in trust, etc., was an official trust, pertaining to the office of county judge, and not a personal one, although the name of the judge is inserted in the patent. Iowa Co. v. M. P. R. Co. 24 Wis. 126. No discussion of this proposition is necessary. So the question narrows down to this: Should the conveyance be made by the county judge of Bayfield county, or by the county judge of Ashland county, in which the lots are situated? The statute of the United States, sec. 2387, R. S. of U. S., appoints as the trustee to take a conveyance of the land “ the judge of the county court for the county in which such town is situated,” and the patent runs to Schuyler Goff as judge of La Pointe county, “and as the proper corporate authority, in trust for the several use and benefit of the occupants of the town of Ashland according to their respective interests, under said act of May 23,1844, and to his successors or assigns in trust as aforesaid.” Had Ashland county been organized when the entry was made in 1856, the certificate of such entry would have been issued to the county judge of that county, under the act of 1844. Had notice of the creation' of that county, and that the town-site of Ashland was within its limits, been given to the proper government officers before the patent was issued, we cannot doubt the patent would have been made to the county judge of Ashland county, because the act of 1844 appoints as trustee in such a case “ the judge of the county court for the county in which such town is situated.” After I860, the town-site in question was situated in Ashland county. ¥e perceive no good reason why the mere fact that the patent happened to be made to the judge of La Pointe county should operate to continue that officer as the trustee after the town-site had ceased to be a part of that county. It was the manifest intention of Congress that the trustee should be the judge of the county in which the town-site is situated. Hence we think when the county of Ashland was organized the judge of that county became the trustee of the town-site in question, and is the officer to administer and execute the trust.

5. We are further of the opinion that sufficient appears on the face of the convejmnce by the judge of Ashland county to Asaph Whittlese}7 to show that the same was intended as an execution of the trust. This sufficiently appears by the recital therein that it was made in consideration of the power vested in the grantor by the act of 1856, which prescribed the procedure for executing the same. In the absence of any proof to the contrary, it must be presumed that the proceedings on the part of the trustee, which resulted in the conveyance to Whittlesey of the lots in controversy, were in accordance with the statute.

See note to this case in 39 N. W. Rep. 355.— Rep.

We think the case was correctly decided, and must therefore affirm the judgment of the circuit court.

By the Court.— Judgment affirmed.

See note to this case in 39 N. W. Rep. 376.— Rep.  