fraud, prima facie, and shifts the burden back upon him who asserts it. Norwegian

Plow Co. v. Hanthorn, 71 Wis. 529, 537, 37 N. W. 825; Cook v. Van Horne, 76 Wis. 520, 526, 44 N. W. 767; Densmore v. Shong, 98 Wis. 380, 385, 74 N. W. 114. Giving credit upon an existing bona fide indebtedness is tantamount to the payment of new and full consideration. Gleason v. Day, 9 Wis. 498. The instruction burdened the plaintiff with this adverse presumption, although the jury should find established the fact of such full and adequate consideration. This, also, was

error.

Other portions of the charge embodied this same idea, namely, that the burden rested on plaintiff to prove both the valuable consideration and a change of possession, or, in lieu of the latter, absence of fraud. They need not be quoted or discussed, however. That the idea itself is erroneous will, of course, prevent their repetition.

Judgment reversed and cause remanded for new trial.

RICHMOND v. SMITH. (Supreme Court of Wisconsin.

1903.)

March 21,

DIVORCE HUSBAND'S CONVEYANCE - FRAUD ON WIFE-INTENT OF PARTIES-SUFFICIENCY OF EVIDENCE.

1. It is not per se fraudulent towards a wife suing for divorce for the husband to convey his property without her knowledge, or to withhold the conveyance from record; but actual fraudulent intent, both in the husband and his grantee, must be shown.

2. Pending divorce proceedings by a wife, the husband, pursuant to agreement with her, conveyed to a trustee for her 40 acres, on which stood his residence. He then conveyed his other 40 by a deed reciting full consideration, but which was not recorded. Two or three persons testified that he did not inform them of this sale, nor did he tell his wife. He collected rent m kind for the then current year, pursuant to agreement with his grantee; and the next year be collected damages awarded in highway proThis ceedings, but paid them to his grantee. rear the grantee rented to his own tenant. Held insufficient to show an intent in the husband to defraud the wife.

3. The grantee paid full value to the husband, who was financially embarrassed. Failure to record deeds was habitual with the grantee. The divorce suit in which decree was finally entered was not begun till a year after the conveyance. Held, in connection with the grantee's appropriation of the highway damages and lease to his own tenant, insufficient to show an intent in him to defraud the wife.

in the evidence was as follows: Boucher being the owner of a farm of 80 acres, and there being an action for divorce pending by his wife against him, on November 29, 1895, he, with his wife, made deed of the north 40 to one Oakey, reciting the existence of the divorce proceedings, and that the parties had agreed upon a settlement of the property owned by them when a decree shall be entered, if at all, and providing that then the said Oakey shall transfer the title to the wife, which deed was at once duly recorded. On February 11, 1896, Boucher (his wife not joining) made warranty deed to the defendant Frank W. Smith of the south 40, subject to a mortgage of $400; acknowledging payment of a consideration of $800, its reasonable value. At that time both 40's were occupied by a tenant, cropping the same on shares; and it was agreed between Boucher and Smith that the former was to have the rent for the year 1896, which agreement was carried out. Smith did not place that deed on record, but about April 1, 1897, rented the 40 to a tenant. The divorce action pending in 1895 seems to have been dropped-there is no evidence as to whether dismissed, or simply allowed to lie dormant. Another divorce suit was commenced, at a date not fixed, but apparently about January, 1897, in which judgment was rendered on the 7th day of April, 1897, decreeing divorce, and adjudging to the wife the whole 80. Smith's deed was not then on record, and there is controversy as to whether the fact of the conveyance was then made known to the plaintiff's attorney and to the court. That deed was recorded April 8, 1897, and the decree of divorce was recorded in the office of the register of deeds on April 14th. The present action was commenced February 2, 1899, and charged that the conveyance from Boucher to Smith was fictitious, and consisted merely in placing said deed on record on April 8, 1897, by said Boucher; that it was made and executed for the purpose of defrauding the wife, Lydia K. Boucher, of her rights in the divorce proceedings; that it was without consideration; and that if it was executed and delivered on February 11, 1896, Boucher and the appellant, Smith, conspired to keep the same off the record and from the knowledge of said wife for the purpose of misleading her, her attorney, and the court in the matter of providing for alimony, and asserting that the defendant

Suit by Nellie Richmond, as administratrix of Lydia K. Boucher, against Frank W. Smith and others. Judgment for plaintiff, and defendant Smith appeals. Reversed.

Action to establish and quiet title to certain 40 acres of land, commonly referred to as the "South 40," of Boucher's farm. The title disclosed substantially without dispute

1. See Divorce, vol. 17, Cent. Dig. § 751.

findings, first, that the allegations of the complaint are proved and true; that, by reason of the decree of divorce and deed of conveyance from Lydia K., the plaintiff is the owner in fee of the premises in question, and that the defendant is in possession thereof; that the deed from Boucher to Smith was without consideration, and was given for the purpose and with the intent on the part of Boucher to deprive his wife of her share of his property, and for the purpose of embar

rassing and annoying her, and that for such purpose he connived with the defendant Smith to keep said deed off the record and keep silent as to said transfer, and that, to continue the purpose of such deception, Boucher continued to act as owner; and that defendant was at all times cognizant of the fraudulent intent, and aided and abetted therein. There was further finding of certain evidentiary facts claimed by the plaintiff to tend to establish these fraudulent purposes, whereupon judgment was entered declaring the plaintiff the owner in fee simple, and barring the defendant against claiming any right or title in the land, and adjudging a recovery of damages for the withholding of the premises and for costs, from which the defendant appeals.

Frank B. Dorothy and Sanborn & Sanborn, for appellant. Haugen, Grimm & Chinnock, for respondent.

DODGE, J. (after stating the facts). .Fraud must be clearly and satisfactorily established before a court is justified in inferring its existence. Shaw v. Gilbert, 111 Wis. 165, 189, 86 N. W. 188. In the present case no specific act of fraud is directly proved, nor, indeed, supported by any direct evidence. It is not per se fraudulent for a husband to convey his property without his wife's knowledge. He has a perfect right to do so. Nor is it per se fraudulent, as against a wife, to withhold such a conveyance from record, either negligently or by agreement between the husband and the grantee. As to her the reasons fai! which have led the courts to declare such act by agreement fraudulent as to creditors who are likely to be induced to extend credit on the faith of the record. The fraud in the case, if any exists, can consist only in the purpose to defeat her rights, and even such purpose entertained by the grantor is ineffective unless also shared or at least known by the grantee. The purpose found by the court was to "deprive his said wife of her share of his property, and for the purpose of embarrassing and annoying her in securing her just proportion thereof in any proceedings she might bring against him." Is there any evidence which could reasonably justify the court in finding that the existence of such a purpose, even on the husband's part, is clearly and satisfactorily established? Divorce proceedings were pending, and evidently expected to result in divorce. The husband had, as a division of property, assented to by the wife, conveyed, to a trustee for her, property amounting to quite onehalf in value of all he is shown to have possessed, and including his residence. There is no evidence that she had expressed any dissatisfaction with such adjustment, or purpos ed to claim any more. In this situation he sells the remaining 40 acres, with obvious natural reasons therefor, namely, that it no longer adjoins or pertains to the land on which he

lives, has no buildings, and is therefore not habitable, and probably not adequate by itself as a farm, and can be utilized only to rent, and is subject to a mortgage. We are convinced that such a situation renders entirely reasonable the desire to sell, and strongly contradicts any purpose such as the court finds, for he naturally would believe his wife had already received all she would demand in the divorce proceedings, and all that any court would give her, for few cases sanction more than one-half as the wife's share upon a division of property. He was fully justified in believing that such conveyance could not deprive her of any rights, or obstruct any claim she was likely to make. Against this inference of bona fides, so strongly supported by the situation, there exist only the facts that the husband informed no one of the sale, and, as the court finds, remained the ostensible owner and in full possession and control until after the decree of divorce. There is no proof that he informed no one-merely that he did not inform two or three persons who testify. We cannot deem this silence as to a business transaction evidence of any serious weight. He owed no duty to proclaim it, and it may have resulted from any of several entirely innocent reasons. Mere accident, danger of harassment by creditors, and natural reticence about private affairs, especially under the unhappy family conditions, are only a few that might be suggested. The finding as to the husband's ostensible ownership and control has support in the evidence to only so limited an extent that it is rather a flight of rhetoric than a statement of an exact fact. Substantially the only support it has is that he did the acts necessary to collection of the rent in kind for the year 1896, which he had reserved in the sale to the defendant, and that in March, 1897, he received certain damages allowed for a highway condemnation. The latter transaction, however, rather negatives than supports the finding, for, after learning that such damages had been allowed, he reported the fact to appellant, who lived some fifteen miles away, and got from him a written order for the money, which, after collecting it, he paid over to him. Such an act in pais certainly does not suggest that either the husband or the appellant were consciously treating the land as the property of the former. Some other findings assert so-called facts which might tend to mark the sale as unusual if they existed-for example, that Boucher himself delivered the deed of February 11, 1896, to the register of deeds on April 8, 1897. To support this there is no shred of evidence, except that another deed executed that day was also delivered to the register on April 8th, while there is abundant and positive evidence to the contrary, which the court had no right to disregard. Again, it is found that the deed was without consideration. This, again, is wholly without evidence in its support, and is negatived by

the deed itself, which acknowledges payment of $800, subject to a $400 mortgage-an amount which the testimony of respondent's counsel shows to have been fully up to its value. Appellant also offered parol testimony as to the consideration, which the court excluded, however, as out of proper order. Certain other evidentiary facts are declared by the findings, which, however, we deem so remote or immaterial that we need not discuss them. We are convinced that the socalled suspicious acts and circumstances of which there is any proof are wholly inadequate to warrant the inference of any such purpose in the mind of the grantor as the trial court drew, as against the circumstances which so strongly negative such inference.

As to the appellant there is still less support for any inference of fraud. As against him, there is no direct fact, except his omission to record his deed, which he declares to have been habitual with him, as, indeed, it is with many. True, he had nothing to do with the land during 1896, but it was then in the possession of a lessee who owed no duty to him. That he did not consider the land as still belonging to Boucher is shown by his treating the highway damages as his own, and by the fact that seasonably in the spring of 1897-about April 1st-he made lease to a tenant of his own selection. There is a finding that he connived with Boucher to keep the conveyance secret and to withhold the deed from record, but of this there is no direct evidence. It is a pure inference from the same facts and circumstances as the inference of a fraudulent purpose, and must fall with that. Against these so-called suspicious circumstances is the undisputed fact that he paid full value for the premises. Such an act has always been considered very strong proof of good faith in a buyer-so strong that of itself alone it overcomes the statutory presumption of fraud arising from continuance of vendor's possession upon a sale of personal property. Griswold v. Nichols (decided herewith) 94 N. W. 33. Especially significant is such payment, when, as apparently the case here, the vendor is in feeble financial circumstances, so that his ability to repay such purchase price is very doubtful. Much weight is laid by respondent on appellant's admission that he heard often of the divorce proceedings in which the decree was finally entered, but, inasmuch as such proceedings are not shown to have been commenced till nearly a year after the purchase, we find difficulty in discovering how appellant's motives at the time of sale could have been affected thereby. After careful consideration of all the evidence, we are forced to the conclusion that the finding of the trial court that the sale to appellant was without consideration, and for the purpose of defrauding Mrs. Boucher, was so clearly opposed by overwhelming preponderance of the evidence that we must believe that the

TAX SALES-DEEDS-RECORD-INDEXING-EVI

DENCE-NOTICE OF SALE-NECESSITY OF PRESERVATION CERTIFICATE FEE - AFFIDAVIT OF PUBLICATION.

1. Under Rev. St. 1878, § 759, requiring all deeds to be indexed in the general index immediately on receipt of the instruments for record, and section 158, making it the duty of the register of deeds to indorse on each writing received for record a certificate of the time of its reception, etc., which shall be evidence of such facts, a certificate that a tax deed was received for record and recorded is prima facie evidence that it was indexed.

2. Rev. St. 1878, § 1130, requires the county treasurer on the first Monday in April in each year to make out a statement of all lands on which the taxes remain unpaid, with an accompanying notice of the sale thereof on the third Tuesday in May following, and cause such statement and notice to be published once each week for four successive weeks prior to the day of sale, and copies thereof to be posted at least four weeks previous to the day of sale in at least four public places in the county. Section 1141 requires the county treasurer immediately after the sale to deposit with the county clerk all affidavits, notices, and papers relating to the sale, together with a statement showing the lands sold, and to whom, and for what amount. Held not to require the filing and preservation of the original notice as a public record, so as to make a failure to so preserve it fatal to the sale.

3. A notice stated that "so much of each tract of land in the annexed and following statement as may be necessary" will be sold, etc. Attached to the notice was a list of the lands to be sold. The affidavit of publication stated only that "the notice of which the annexed is a printed copy was printed," etc. Held, that as the statement was incorporated in the notice, and was, in effect, a part thereof, the affidavit was sufficient, though not stating that a "statement," as well as a "notice," was published.

4. If lands sold for taxes are sold for 25 cents per parcel in excess of the sum authorized by law, such excess cannot be regarded as too trivial to be considered, but renders the sale void.

5. Rev. St. 1878. § 1130, requires notice of a tax sale to be published four successive weeks," and section 1132 requires the printer to transmit his affidavit of publication within six days after the last publication. A notice was published five successive weeks, and the printer's affidavit transmitted within six days after the last publication. Held, that the first four publications were the only legal ones, the fifth being mere surplusage, so that the affidavit of publication, not being within six days from the fourth publication, was too late.

6. Under Rev. St. 1878, § 1140, providing for the issuance of certificates of tax sale, showing that the "lands herein described" have been sold, etc., the certificate may include all the tracts sold to one purchaser, and hence the fee of 25 cents for each certificate allowed by section 1196 cannot be charged against each parcel sold, but only for each certificate issued.

Action by the Chippewa River Land Company against the J. L. Gates Land Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action in ejectment to recover possession of about 4,000 acres of land in Gates and Chippewa counties. The complaint is in statutory form, and the answer claims title in the defendant under tax deeds. Upon the trial the plaintiff introduced in evidence a large number of tax deeds as the basis of its title, to each of which deeds the objection was made that the proof of the recording was insufficient; but the objection was overruled in each case, and exception taken. The defendant thereupon offered in evidence the tax deeds upon which it relies, all of which were issued subsequently to the plaintiff's tax deeds, and the recording thereof was admitted. The plaintiff, in rebuttal, offered in evidence certain records of the tax proceedings upon which defendant's tax deeds were based, claiming that such records showed fatal defects in the proceedings. The court found that the lands in question were, and at all times had been, vacant and unoccupied, and that plaintiff was the owner of said lands, subject to the legal effect to be given to the tax deeds offered by the defendant; that the defendant's tax deeds were void for two reasons: (1) That the sum of 25 cents was illegally included in the amount for which each tract of land was sold; (2) that no statement and accompanying notice, as provided by section 1130, Rev. St. 1878, was ever made out by the county treasurer of Chippewa county, and deposited by him in the office of the county clerk of said county, as required by section 1141, Rev. St. 1878. Judgment for the plaintiff was directed on condition that the plaintiff pay into court, for the use of the defendant, the aggregate amount for which the lands were sold to the defendant at the various tax sales, less the sum of 25 cents on each parcel, together with the cost of executing and recording said deeds, the amount of subsequent taxes paid by the defendant, and interest on all such sums at the rate of 15 per cent. per annum, and that in default of such payment the defendant have judgment in the action. Judgment being entered in accordance with these findings, the defendant appeals.

Sturdevant & Clark, for appellant. D. Buchanan, Jr. (W. F. Bailey, of counsel), for respondent.

WINSLOW, J. (after stating the facts). The tax deeds under which the plaintiff claims title were issued prior to the defendant's tax deeds, and, if they were properly indexed and recorded, it is admitted that the statute of limitations has run in their favor. The defendant claims, however, that there was no proof that they were indexed as re

quired by section 759, Rev. St. 1878, and hence that they cannot be held to have ever been recorded. This is the first question to be considered. A tax deed must have been properly indexed, or it is not deemed to have been recorded; and, until it is so recorded. ejectment cannot be maintained thereon. Hewitt v. Week, 59 Wis. 444, 18 N. W. 417; Hiles v. Atlee, 80 Wis. 219, 49 N. W. 816, 27 Am. St. Rep. 32. The proof on the subject consisted simply of the introduction of the original deeds, each of which had indorsed thereon a certificate substantially as follows: "Register's Office, Chippewa County. Received for record the 20th day of May, 1889, at 10:15 a. m., and recorded in Vol. 5 of Deeds, on page 252. W. J. Dalton, Register." Is this certificate sufficient proof, in the absence of any proof to the contrary, that the tax deed upon which it is indorsed was indexed in the general index, as required by section 759, Rev. St. 1878? We think it is. The statute nowhere requires that the fact of indexing is to be certified or indorsed upon the deed, but it does require that the entry in the general index shall be made immediately upon the receipt of the instrument, "in the order of time in which it was received, the day, hour and minute of reception, and the same shall be considered as recorded at the time so noted." Section 759, supra.

Section 758 provides that it shall be the duty of the register of deeds "to endorse upon each instrument or writing received by him for record, his certificate of the time when it was received, specifying the day, hour and minute of reception and the volume and page where the same is recorded, which shall be evidence of such facts." Now, it is argued that under this provision the certificate upon the deed is only evidence of the time of reception of the deed, and of the fact that it has been recorded at length in a certain book. If it be granted that this is the proper meaning of the statute, still the result claimed does not follow. It is made the duty of the register to index the instrument immediately upon its receipt. This act is the very first act to be done, and must necessarily precede the recording at length of the instrument. It is a universal presumption that a public officer performs his duty as the statute requires; hence when it appears by due certificate that the register has received the instrument, and recorded the same at length in the records, it must necessarily be presumed that he has performed the duty which the statute imposes upon him preceding the recording at length, namely, the duty of making the proper entries in the general index. This is but a reasonable and fair presumption, and one which, we think, has been uniformly acted upon by trial courts without question. If, as matter of fact, the register of deeds has neglected his duty, and made no entry in the general index, that fact can be easily shown by proof. Until the introduction of such proof, the presumption of

due performance of official duty arising from the certificate showing the receipt and recording of the instrument at length must prevail. This conclusion disposes of the only objection made to the respondent's title, and makes it necessary to consider the validity of the appellant's tax deeds. The statute of limitations not having run upon these deeds at the time of the commencement of the action, the record of the tax proceedings was introduced for the purpose of showing alleged defects therein, rendering the deeds invalid. These alleged defects will be considered.

1. Section 1130, Rev. St. 1878, requires the county treasurer on the first Monday in April in each year to make out a statement of all lands upon which the taxes remain unpaid, with an accompanying notice of the sale thereof on the third Tuesday in May following, and cause such statement and notice to be published once in each week for four successive weeks prior to the day of sale, and copies thereof to be posted at least four weeks previous to the day of sale in at least four public places in the county. Section 1141, Rev. St. 1878, requires the county treasurer, immediately after the sale, to deposit with the county clerk all affidavits, notices, and papers relating to the sale, together with a statement showing the lands sold, and to whom, and for what amount. It appears that no original statement and notice such as is described in section 1130, supra, was kept by the treasurer or filed in his office, , and this is claimed to be fatal to the validity of the sale. It appears, however, that the treasurer in each case made out a notice substantially as follows: "State of Wisconsin, County of Chippewa-ss.: Notice is hereby given that so much of each tract or parcel of land in the annexed and following statement as may be necessary therefor, will, on the third Tuesday of May A. D. 189– being the day of said month and the next succeeding days, be sold by me at public auction at the county treasurer's office in the courthouse in the city of Chippewa Falls in said county of Chippewa for the payment of taxes, interest and charges due thereon for the year 189-. Said sale to commence at nine o'clock sharp in the forenoon. Dated at the Co. Treasurer's office in the city of Chippewa Falls in said county of Chippewa, the

day of April, 189-. Henry Goetz, Co. Treas." It also appears that attached to this notice there was a list of the parcels of land to be sold, headed as follows, but not signed by the treasurer: "Statement of all lands in the county of Chippewa in the state of Wisconsin, except public lands held on contract and lands mortgaged to the state upon which the taxes for the year 189- have been returned as delinquent and which remain unpaid on the first Monday in April, A. D. 189 being the day of said month; that is to say [here follows a statement of the several parcels of land]." It is

claimed by the respondent that this statement and notice is in the nature of a public record, and that, while there is no statute specifically requiring an original to be kept on file in the county treasurer's office, still it is manifestly essential that there should be such an original preserved and on file. We can hardly agree with this contention. The manifest object and purpose of the section is to give notice of the sale to the public and to property owners by public advertisement. To hold that, after the notice had been fully given in every respect as required by the law, the sale must be held invalid because the original of the notice had not been kept by the treasurer in his office, would be to sacrifice substance to shadow. The statute simply says that the treasurer shall make out the statement and notice, "and cause such statement and notice to be published," and "cause to be posted up copies of such statement and notice." The natural meaning of this would seem to be that the original statement and notice is to be sent to the newspapers for publication. Certain it is that, if the notice and statement be not published, the fact that an original was carefully preserved in the treasurer's office would not save the sale. Again, both the publication and the posting are required to be proven by the filing of affidavits with the treasurer. These affidavits must necessarily contain copies of the notice and statement, so that here are preserved the very notices and statements which are effective. In view of their careful preservation, the filing of an original which can cut no figure as notice if it differ from the notice published is unimportant, and, in the absence of a specific requirement to that effect, we hold it unnecessary.

2. It is claimed that the affidavits of publication of the notice and statement are insufficient. It appears that the affidavits simply state that "the notice of which the annexed is a printed copy taken from said newspaper has been printed," etc. Attached to the affidavit is a printed copy of the notice and accompanying statement. The contention is that there are two separate papers to be published-a "notice" and a "statement"-and that the affidavits only show the publication of the notice. The argument is not without force, yet we think it is untenable. As will be seen by reference to the notice itself, the statement is really incorporated into the notice by the terms of the notice. It states that so much of each tract of land "in the annexed and following statement as may be necessary" will be sold. In legal effect, this is equivalent to stating in the notice itself the description of each tract of land which is to be sold. We suppose that, if the statement of parcels were inserted in the body of the notice, it would not be contended by any one that an affidavit which stated that the notice was duly published was insufficient because it did not name the