Opinion of the Court.

payment of taxes, lack of jurisdiction in the taxing officers, or the like.

On behalf of the appellant a great variety of objections is urged to the validity of the tax deeds and proceedings, many of which are not open to consideration, if the deed was not void on its face and was duly recorded. It is, indeed, contended that appellee, by the introduction of certain evidence, waived its right to reply on the statute of limitations and the conclusive effect of the deed, but we do not think this contention can be sustained. The evidence referred to was adduced in rebuttal or in support of complainant's general equities, and although formal defects in the proceedings may have been disclosed, we cannot hold that the door for an attack thereon was thereby intentionally opened, which the statute had effectually closed. Still less, in a case where the right, as well as the remedy, had been extinguished if complainant's position were as claimed. Leffingwell v. Warren, 2 Black, 599. We regard the deed as valid on its face, and cannot accept the suggestion that this is not so because too literally following the statutory form. The recital as to redemption was: "And whereas it further appears, as the fact is, that the owner or owners or claimant or claimants of said lands has or have not redeemed from said sale the lands which were sold as aforesaid, and said lands are now unredeemed from such sale, ." The meaning is clear that there had been no redemption by the owner or owners or claimant or claimants.

But it is insisted that the tax proceedings in question were void for want of jurisdiction in the taxing officers. These proceedings were carried on by the officers of the town of Superior, and appellant proved that in 1859 the town of Pokegama was organized by the county board and included township No. 49, range 14 W., in which the land in controversy was situated, and that the town of Pokegama was duly organized and represented upon the county board in 1859 and 1860. But it appeared that in 1859 two towns were set off by the board of county supervisors, one, township 48, range 14, to be known as Nemadji, and the other, township 49, range

Opinion of the Court.

14, to be known as Pokegama, and that on January 19, 1861, a resolution was passed by the county board as follows: "That the towns of Pokegama and Nemadji be vacated, the above order to take effect and be in force on and after the first day of April next, and the board do further order and determine that the next town meeting shall be held in the town of Superior to elect three supervisors that shall be the county and town board of supervisors."

While not accurately worded in that respect, the obvious intention was that the territory of these two towns should become part of the town of Superior, and the record of town. and board meetings thereafter down to a point of time subsequent to these tax proceedings establish the continued exercise of jurisdiction over the whole territory.

By section 28 of chapter 13 of the Revised Statutes of 1858 power was conferred upon county boards "to set off, organize, vacate, and change the boundaries of towns in their respective counties." And to their action, as embodied in this resolution, it will not do, as is well said in Hark v. Gladwell, 49 Wisconsin, 172, 177, to apply "nice verbal criticism and strict parliamentary distinctions, because the business is transacted generally by plain men, not familiar with parliamentary law. Therefore their proceedings must be liberally construed in order to get at the real intent and meaning of the body."

By chapter 54 of the General Laws of Wisconsin of 1883 (vol. 1, p. 49,) it was provided, among other things, that "every town shall be considered and held to be, and to have been duly organized, which has exercised, or shall hereafter exercise, the powers, functions, and franchises of a town for a period of two years." The statute further enacted that the validity of any order or ordinance purporting to organize or set off any new town, or to change the boundaries of any existing town or towns, might be tested by certiorari or any other proper proceeding brought directly for the purpose of vacating such order or ordinance in a court of competent jurisdiction, at any time within two years after the date of such order or ordinance, or within sixty days after the publication of the act if two years had already expired, and that no such order or ordi

Opinion of the Court.,

nance should be otherwise questioned than directly. This recognized the general rule of the common law on the subject of collateral attack, and we are of opinion that the corporate standing of the town of Superior as including the other two towns cannot be thus questioned after the years of corporate action shown by the evidence. Austrian v. Guy, 21 Fed. Rep. 500.

Dismissing the numerous other objections discussed, such as the admission of the deeds in evidence without proof of execution; the alleged payment of the taxes for 1866; the custody of the tax records; the official character of the deputy county clerk; the validity of his appointment, etc., as either not properly raised or arising, on the record, or as not sufficiently well founded to call for observations upon them, although they have all been carefully examined, we are brought to the point which the Circuit Court regarded as the principal question in the case, namely, the objection made to the elder tax deed that the record thereof was void, because not properly indexed as the statute required.

By sections 140, 142, and 143 of chapter 13 of the Revised Statutes of 1858 it was provided that the register of deeds should have the custody of all books, records, deeds, etc., deposited or kept in his office; should record or cause to be recorded correctly and in a plain and distinct handwriting in suitable books, all deeds, mortgages, maps, instruments, and writings authorized by law to be recorded in his office; that he should keep a general index, each page of which should be divided into eight columns, with heads to the respective columns, as follows: "Time of reception. Name of grantor. Name of grantee. Description of land. Name of instrument. Volume and page where recorded. To whom delivered. Fees received;" that such register should make correct entries in said index of every instrument or writing received by him for record, under the respective and appropriate heads, entering the names of the grantors in alphabetical order; and should immediately, upon the receipt of any such instrument or writing for record, enter in the appropriate column and in the order in which it was received the day, hour, and minute of its recep

Opinion of the Court.

tion, and the same should be considered as recorded at the time so noted. By section 759 of the Revised Statutes of 1878 it is directed that the division shall be into nine columns, the first column being headed: "Number of instrument," and the others as in the act of 1858.

In Lombard v. Culbertson, 59 Wisconsin, 433, 439, it was said that the entries in the general index are the material things in determining whether a deed has been so recorded as to be notice to subsequent purchasers, prior decisions to the same effect being cited, and as to a claimant under a tax deed it was held that "he is clearly required to show that it was so recorded as to be constructive notice, at least, to the plaintiff, that he held such tax title and intended to rely upon such deed to defeat plaintiff's title. He must record it the same way to set the statute of limitations running in his favor and against the plaintiff as he would be required to do in the case of a deed or mortgage to defeat the right of a subsequent purchaser for value without notice." The decisions are numerous, and many are cited by counsel upon the question whether in recording tax deeds the general index and the record at large can be relied on to help out defects existing in either.

In this case the tax deed was entered in the index under the name of Douglas County by which it was issued, although running in the name of the State as well as of the county. And it is contended that, as a tax deed containing the name of the county as grantor, but omitting the name of the State as grantor, is void upon its face, Easley v. Whipple, 57 Wisconsin, 485; Haseltine v. Hewitt, 61 Wisconsin, 121, and that if the index showed a deed void on its face, though it was not so in fact, the falsity of the index would not be cured by the actual and correct spreading of the deed upon the record, therefore this deed should be held void. But it was distinctly ruled in Hall v. Baker, 74 Wisconsin, 118, 131, that all that is required by the provision regarding the general index is to give the name of the county only, and not the State, as grantor, and Chief Justice Cole said: "A person searching the record for a tax deed would naturally look for the name

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of the county which gave it, and would not be likely to look for the name of the State as grantor. It would be laborious to find the proper deed under the name of the State, considering the many counties in the State."

It appeared that none of the tax deeds of record in the register's office of Douglas County, Wisconsin, had been indexed under the name of the State of Wisconsin, either under the letter S or under the letter W, in the index, and that the respective registers of deeds had been and were accustomed to enter such deeds under the letter D with the name of Douglas County as grantor.

We entirely concur in the ruling of the Supreme Court of Wisconsin, and it is decisive of the question made.

We do not understand from the arguments of counsel that it was contended in the court below, or is contended here, that the date of filing, "1870, September 7, 3 P.M,," the name of the grantor, "Douglas County, per clerk," and of the grantee, "Hayes, Hiram," did not appear upon the original index, although in his brief in reply counsel for appellant criticises the language of the District Judge in disposing of the case as if he had therein proceeded upon the ground that a part of the index was the whole of it. We assume that the original index had the eight divisions of the statute, but that the fourth column, under the heading "description," was subdivided, and that all after the first three statutory divisions ran as exhibited in the photographic copy introduced below and presented at the bar, and reproduced on page 339.

The objection appears to be that in the column for the description the figures 28, 49, 14 were not under the sub-headings of the fourth division, but so crowded toward the right as to be so incorrect and misleading as to invalidate the index in respect of that entry. We do not think so. We agree with the Circuit Court that taking the page as a whole any one who would be misled by it would be misled wilfully, and that the index furnished all the information that an ordinarily prudent man would want to send him to the full record of the deed. The entry would be read at once as the southwest quarter or half of section 28, township 49, north of range 14