
    Wakeley vs. Mohr.
    The omission of the words “as the fact is’’ in that clause of a tax deed executed under chap. 66, Laws of 1864, which declares that the’owner of the land described in the deed has not redeemed, &c., renders the deed void, although those words are duly inserted in the clause which relates to the sale of the land.
    APPEAL from the County Court of Dane County.
    This was an action under secs. 35 et seq., ch. 22, Laws of 1859, to quiet the plaintiff’s title under a tax deed, to land in said county. Mohr demurred to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action, and that several causes of action were improperly joined therein. The court sustained the demurrer, and the plaintiff appealed. A former decision of this court, overruling the order appealed from, will be found in the 15th volume of this series, pp. 609-611. The respondent moved for a rehearing on the ground that the tax deed under which the plaintiff claimed was invalid, the words “as the fact is” being omitted from that clause which declares that “ it further appears that the owner of said lots of land has not redeemed from said sale the said lots of land which were sold as aforesaid ; and said lots of land are now unredeemed from such sale, whereby ” &c. A rehearing was granted, and the cause was re-argued at the January term, 1864.
    
      J. C. Hopkins, for respondent.
    
      Walceleys & Vilas, for appellant:
    The reasons assigned in the opinion in Lain v. Cook do not apply to the omission of the words “ as the fact is ” in the last place where they occur in the statute form of the tax deed. The court say that those words are intended as a positive assertion, in tbe first place, that tbe land was sold ; and in tbe second place, that tbe owner &c. bas not redeemed it. This we concede. But in tbe last place tbe added words “ and said lands are now unredeemed from sucb sale ” are a positive and unqualified assertion that no person bas redeemed tbe lands. Tbe sentence is not to be read as if tbe word “ that ” preceded tbe words just above quoted, and connected them with “ appears but, by tbe most familiar rules of grammatical construction, tbe quoted words are of tbemselves a distinct and positive assertion that “ said lands are now unredeemed from sucb sale.” If so, then a form of deed omitting tbe words “ as tbe fact is ” in tbe last place is “ equivalent ” to one containing tbem.
   By the Court,

DixoN, C. J.

A rebearing was granted in this case upon tbe point decided in Lain v. Cook, 15 Wis., 446, and not presented in tbe first argument, namely, that tbe tax deed set out in tbe complaint is void for tbe omission of the words “ as tbe fact is,” required by chapter 66, Laws of 1854. Counsel struggled to distinguish this case from Lain v. Cook, and to show that tbe recitals of tbe deed are equivalent in substance to tbe words used in tbe statute. It is bard, however, to struggle against tbe positive requirements of a statute, and we think tbe learned counsel felt tbe difficulty. Tbe deed contains no words of equivalent signification, and tbe cases are not distinguishable.

Order affirmed.  