statement specifically. The principle is well settled that one paper may, by apt reference and description, be incorporated into another, and become in legal effect a part thereof. Such we deem to be the case here. The statement became an integral part of the notice by apt reference, and the affidavits in question must be held, in reason, to mean that the entire notice, which, as we have seen, in legal effect includes the statement, was published. 3. The third objection which it seems necessary to consider is, however, far more serious than those which we have already discussed. That objection is that at each of the tax sales the county treasurer sold each parcel of land for 50 cents in excess of the taxes, interest, and charges legally due thereon at the time of the sale. It was stipulated in the case that the county treasurer's statements show that the sums for which the lands were sold in each case includes the sum returned by the town treasurer, with interest to the day of sale, also the sum of 25 cents for an advertising fee, and 25 cents additional, and that certificates were issued to purchasers for the aggregate of said sums, without any additional charge for the certificate fee provided for by section 1196, Rev. St. 1878. It is claimed that both of these charges of 25 cents are illegal-the first, because the printer was entitled to no fee; and the second, because the certificate fee is no part of the sum for which the lands are authorized to be sold. If, as matter of fact, the parcels were sold for 50 cents, or even 25 cents, per parcel, in excess of the sum authorized by law, the sale must be held void. Such an excess cannot be held trivial or unimportant. Barden v. Supervisors, 33 Wis. 447, 14 Am. Rep. 762. It is not denied that the statute provides for a fee of 25 cents per parcel for the publication of the notice of sale, which may properly be included in the sum for which the land is sold; but the claim is that no such fee can be charged in this case, because the printer did not transmit to the county treasurer his affidavit of publication within six days after the last publication thereof, and hence, under section 1132, Rev. St. 1878, is not entitled to any fee. If the fact be as claimed, there can be no doubt that the charge is illegal, because the county certainly can collect no such fee of the taxpayer unless it is obliged to pay it to the printer. It appears, without dispute, that none of the affidavits were ever filed with the county treasurer, but were all filed with the county clerk. The respondent's claim, however, is not based on this fact alone. It appears that the notices of sale were all published five times, but that the last publication was within the last week preceding the tax sale. If the fifth publication could be held to be the last legal publication, then the affidavits were filed within six days from the last publication; but if, are the legal publications, and the fifth mere surplusage, the affidavits were all filed more than six days after the last publication. We think it clear that the first four publications must be held to be the only legal publications of the notice. The notice must be published for four successive weeks prior to the day of sale. If the last four publications are to be reckoned as the legal publications, then the notice was only published three successive weeks, and a fraction over, before the day of sale. So it appears that the first four publications must be considered as the publications authorized by the statute, and hence that the printer was entitled to no fee for the publication. Were this otherwise, however, it is impossible to see how the charge of 25 cents additional could be justified. It is said that this must be presumed to be for a certificate fee. The statute provides that the county treasurer shall receive a fee of 25 cents for each certificate of sale. Rev. St. 1878, § 1196. This certificate fee is to be paid by the person to whom the certificate is issued, and added to the sum for which the lands were sold, and included in the certificate issued. It is said in support of the course pursued here that, even if the sum is not to be included in the amount for which the land is sold, still there is no substantial wrong, because the certificate fee must be paid upon redemption. The trouble with this argument, however, is that the law does not require a certificate fee to be paid for each parcel sold, but only for each certificate issued, and that the statute contem-. plates that one certificate may include any number of parcels sold to the same person. Reference to section 1140, Rev. St. 1878, which provides the form for certificates, shows that this is the case; and such, we think, is the practice in some localities. Therefore the certificate fee cannot properly be charged against each parcel as a part of the sum for which the parcel is sold. These considerations demonstrate the invalidity of the tax deeds relied upon by the appellant, and the correctness of the judgment. Judgment affirmed. ΡΙΤΜΑΝ v. HILL. (Supreme Court of Wisconsin. March 21, 1903.) ADVERSE POSSESSION-STATUTES-MORT GAGEE-EVIDENCE. 1. Rev. St. 1898, § 4211, provides that the occupancy of land for 10 years under claim of title based on a written instrument constitutes adverse possession. Held, that an assignment of a certificate of entry, in terms conveying the same and the land therein described, is a sufficient written instrument on which to found adverse possession, though the purpose of the parties was to make a mortgage, and not a conveyance of the title. 2. Rev. St. 1898, § 4211, provides that occupancy of land for 10 years under claim of title founded on a written instrument constitutes on the other hand, the first four publications | adverse possession. Section 4210 provides that in actions to recover real property the occupation of the premises by one not having a legal title is presumed to have been in subordination to the legal title, unless it appears possession has been adverse. Section 4212, subd. 3, provides land shall be deemed to have been possessed adversely where, though not inclosed, it has been used for the supply of fuel, purposes of husbandry, or the ordinary uses of the occupant. In a suit to quiet title, defendant claimed that an assignment of a certificate of entry by her ancestor to plaintiff had been as security for a note which had been paid. The note and a written agreement tending to show that the certificate was so assigned was found among the papers of defendant's ancestor. Plaintiff had been in possession more than 10 years, had used the premises for a woodlot, taking wood therefrom annually, and had paid taxes. Held, that plaintiff had acquired title by adverse possession. 3. Whether one in possession of land adversely makes his claim in good faith or bad faith is immaterial as against the holder of the title. Appeal from Circuit Court, Polk County; A. J. Vinje, Judge. Suit by Mark Pitman against Mary Stetson Hill. From a decree for plaintiff, defendant appeals. Affirmed. Action to quiet title. The complaint is in the usual form. Defendant answered, alleging that she was the only heir at law of Benjamin F. Stetson, deceased; that in his lifetime he was owner and possessor of United States land warrant No. 4,571, calling for 420 acres of government land; that one B. P. Pitman, as agent of Stetson, selected and entered under said land warrant the lands in question, to wit, the southeast quarter of the southeast quarter of section 12, town 33, range 19 west, in Polk county, Wis.; that plaintiff claims under said B. P. Pitman, and that the only way the latter became interested in the land was through an assignment by Stetson of the land warrant, made August 10, 1861, by which the said warrant was conveyed to Pitman to secure payment of a promissory note for $34.07 with interest thereon, the principal and interest being made payable on or before the 1st day of November, 1861; that the assignment was made in connection with an agreement in writing made by Pitman to reconvey the property assigned to Stetson upon his paying the note; that the note was paid and that thereby the mortgage debt of Pitman was extinguished; that by reason of the facts defendant is the sole owner of the lands in question, and that plaintiff has no right, title or interest therein. The following documentary evidence was produced upon the trial: A receipt given by B. P. Pitman to Benjamin F. Stetson for the land warrant mentioned in the answer, the receipt specifying that Pitman was to locate the land called for by the warrant and to have $25 for his services and reimbursement for all sums paid for officer's fees; a certificate of location of the land in question made by the proper officers of the United 3. See Adverse Possession, vol. 1, Cent. Dig. States land office at Hudson, Wis.; a United States patent of the land to Stetson; a note apparently made by Stetson, corresponding to the one mentioned in the answer, written on the same sheet with an agreement made by B. P. Pitman to the effect that if Stetson should pay the note Pitman would assign to him all his, Pitman's, right, title and interest in the property in question, and two other tracts of land, the three tracts together corresponding with the acreage called for by the land warrant; an assignment on the certificate of location before mentioned, in terms conveying such certificate and the land therein described to Pitman, and authorizing him to receive the patent therefor, the said assignment being executed in main by Stetson and his signature thereto being witnessed by one witness and the execution thereof properly acknowledged. The patent, certificate of location, and assignment thereon, came from the possession of plaintiff, and were found among his father's papers. The note and agreement came from the possession of defendant, and were found among her father's papers. Due proof was made that B. P. Pitman exercised acts of ownership over the land by annually taking wood therefrom for his ordinary purposes, and cutting some timber, for a period of more than 20 years after he became possessed of the certificate of entry and the assignment; that he exercised such acts of ownership up to the time of his death, and that whatever interest he had in the property passed by his will to plaintiff; that plaintiff continued to use the property substantially the same as his predecessor; that plaintiff and his father have paid the taxes on the property during all the time they exercised acts of ownership over the same. There was further proof that the land was wild and unoccupied territory during all the time subsequent to the entry, except as the same was used as a woodlot as before indicated. The land was entered June 6, 1859, by Stetson. It was patented to him August 3, 1860. The assignment of the certificate of entry is dated August 10, 1861. The court found, respecting the entry of the land, the issuance of the patent therefor, and the assignment of the certificate of entry, in accordance with the foregoing; that Stetson, for a valuable consideration, August 10, 1861, sold and assigned the land warrant mentioned, and the land described in the complaint, to plaintiff's father, who, from 1873 to the time of his death, November 17, 1896, used the land annually for a supply of fuel and timber for his ordinary use, and that he paid the taxes on the property during all that period; that whatever interest he had at the time of his death passed by will to plaintiff; and that plaintiff was the owner in fee simple of the property at the time of the commencement of this action. Upon such facts the court decided that | it was subordinate to the rights of a superior plaintiff was entitled to the relief prayed for, and judgment was entered accordingly. Mons P. Jerdee (Sanborn & Sanborn, of counsel), for appellant. Frank P. Dorothy, for respondent. MARSHALL, J. (after stating the facts). It is conceded that if the trial court was correct in drawing the inferences that are embodied in the findings of fact, the judgment must be affirmed. The sole question for consideration, therefore, is, are such findings contrary to the clear preponderance of the evidence? It hardly needs more than the statement of the evidence found in the foregoing to solve that proposition, when we apply thereto the rules of law governing the subject. owner, and substituted in its place the presumption that the use was characterized by all the elements of adverse possession necessary to cut off the title of a once superior owner, if there were such, and vest a complete title in fee in the hostile claimant. Sections 4210, 4212, Id.; Carmody v. Mulrooney, 87 Wis. 552, 58 N. W. 1109; Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103; Wollman v. Ruehle, 100 Wis. 31, 35, 75 N. W. 425; Bishop v. Bleyer, 105 Wis. 330, 81 N. W. 413; Illinois S. Co. v. Budzisz, 106 Wis. 507, 82 N. W. 534, 48 L. R. A. 830, 80 Am. St. Rep. 54; Meyer v. Hope, 101 Wis. 123, 77 N. W. 720. Now, where is the evidence to rebut that state of the case? Our attention is called to none except the circumstance that the note claimed to represent the indebtedness which was the foundation of the transaction of turning the certificate of entry over to respondent was found in the possession of the maker, indicating that it was a paid obligation. There are circumstances about the paper itself to impair its weight as evidence that it is a paid obligation. It was attached to a paper which naturally belonged from the beginning in the possession of the maker of the note. That, as suggested by respondent's counsel, indicates that the note may never have been used at all; that is, that it never became an obligation because never delivered to the payee. Again, if the note was paid, and was the foundation of the transaction whereby respondent's predecessor came into possession of the certificate of entry and the assignment thereof, possession thereof by the maker would rather indicate that the action of such predecessor was hostile if he paid the note yet retained the certificate of entry and the conveyance thereof, and treated the land as his own. Even if the paper were in form as well as in fact a mortgage, such conduct would seem to corroborate the idea of adverse possession rather than rebut it. On the whole we can see no justification for holding that the trial court found the facts against the clear preponderance of the evidence. The assignment of the certificate of entry, in terms conveying the same and the land therein described to respondent's predecessor, was a sufficient written instrument upon which to found adverse possession under sections 4211 and 4212, Rev. St. 1898. Grant that the purpose of the parties was to make a mortgage and not a conveyance of the title, and grant, also, that the mortgage indebtedness has been paid; still there is evidence from which the court was warranted in coming to the conclusion that respondent's predecessor held adverse possession under the instrument for the full statutory period necessary to give him full title to the property. A mere mortgagee of land has no right to the possession thereof. In this case respondent's father, under the written instrument mentioned, let it be a mortgage or a full conveyance, it makes no difference which we call it, took possession of the property and treated it as his own for more than 20 years, and his conduct during the whole time was consistent only with the idea that his possession was adverse. Ten years would have been sufficient. Such conduct by a mortgagee is sufficient to give him title by adverse possession. Knowlton v. Walker, 13 Wis. 264; Waldo v. Rice, 14 Wis. 286. The acts of ownership were open, continuous, hostile, and of a nature to satisfy all the essentials of adverse possession under or independently of the statute. Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171. They consisted of using the premises for a woodlot, the adverse U. S. GRANT UNIVERSITY v. FRUIT'S possessor taking wood therefrom for his ordinary use annually for the full statutory period. That satisfies to the letter subdivision 3, § 4212, Id. To that we have added the significant circumstance of the payment of the taxes, which is inconsistent with any other theory than that the payor claimed the property as his own. Whether his claim was in good faith or bad faith of course makes no difference. Lampman v. Van Alstyne, supra. The continued use of the property as indicated, by force of the statutes, sections 4210 and 4211, Id., displaced the presumption that The judgment is affirmed. Provided further that all property of donor unspecified as otherwise applied as bequeathed shall be the property of G. University, after decease of donor." The money provided by her for a scholarship was never devoted to that purpose, and no such scholarship was actually established in the University, though the donee did confer the name "Rev. John Bean" on a professorship in the theological department in the university. Deceased made a new will, revoking a former will made in conformity to the paper she signed. Held, that the donee had not complied with the condition upon which the endowment depended, and was not entitled to payment of the claim against the estate of deceased for the amount of the donation. Appeal from Circuit Court, Sauk County; Robert G. Siebecker, Judge. Action by the U. S. Grant University against the estate of Carolina B. Fruit, deceased. Judgment for defendant, and plaintiff appeals. Affirmed. In 1887 an educational corporation known as the Grant Memorial University was located at Athens, Tenn., where it conducted an institution of learning. In March of that year one J. J. Garvin visited Mrs. Caroline C. Fruit at her home in Baraboo, Wis., and there solicited her to aid in establishing a chair of practical theology in said institution, with the result that she signed a paper which was in the words and figures following: "The Rev. John Bean chair and Carolina Fruit scholarship in Grant Memorial University at Athens, Tenn., said chair to be named and said scholarship to be awarded at once on condition of donor paying one thousand dollars ($1000.00) in cash or real estate, and providing by will for the payment, at decease of donor, of five thousand dollars (5000.00). And after the following named benevolences of the M. E. church have received as follows: The Church Extension Society....... $500 00 The Foreign Missionary Society...... 500 00 And the Freedman's Aid Society...... 500 00 And the Home Missionary Society.... 500 00 "Provided that the last two amounts be applied as directed by the regents of the U. S. Grant Memorial University. After which amounts shall be applied to the Rev. John Bean chair until the total contributed by donor shall reach $10,000. Provided further that all property of donor unspecified as otherwise applied as bequeathed shall be the property of Grant Memorial University, after decease of donor. "J. J. Garvin, General Solicitor. "Carolina C. B. Fruit, Donor." After signing such paper Mrs. Fruit made a will in conformity thereto and conveyed real estate to such corporation to the amount of $1,000, and gave a copy of the will and such paper to said Garvin for presentation to said corporation for its acceptance. At a meeting of the trustees of such corporation competent to act in the matter a resolution was adopted as follows: "Resolved, that we hereby record our grateful acceptance of the 'will' of Mrs. Carolina B. Fruit, secured and presented by Prof. J. J. Garvin, providing for the payment of ten thousand dollars to Grant Memorial University at the time of the decease of the donor and also for placing in the hands of said board $1,000 to be distributed by them as per said will. "Resolved, that we hereby comply with the conditions of the aforesaid 'will' by naming a chair in the theological department of said university to be known as the Rev. John Bean Chair or 'professorship.' "Resolved, that we will have said name properly engraved on a marble tablet in said university and spread these resolutions on the journal of said institution, with the name of the donor." At or about the time of such adoption and in effect as part of the said pretended acceptance of Mrs. Fruit's proposition referred to, an agreement was made between the corporation and said Garvin, worded as follows: "This agreement made and entered into this 28th day of April, 1887, by and between the trustees of Grant Memorial University of the state of Tennessee, and J. J. Garvin, professor in the school of theology in said university, witnesseth: That the said J. J. Garvin is appointed and invested with full authority as financial agent and general solicitor of endowment funds for the said G. M. university. "Said funds subscribed and collected are to be used for the endowment of a professorship in the school of theology in said university. "It is further agreed that the said J. J. Garvin shall receive twenty (20) per cent. of all donations secured by him as commission. This commission may be taken from cash donations when collected. If the donation is in real estate or other property, the said J. J. Garvin by agreement of all parties concerned as to values, may take his commission for cash donations secured by him; otherwise the said J. J. Garvin shall have onefifth interest in said property. "In case the commission is taken in lands or other property the board of trustees shall deliver to said J. J. Garvin a deed for onefifth of said property or land; said one-fifth interest to be either divided or undivided as said Garvin shall desire. "It is further agreed that all donations for permanent endowment secured by said J. J. Garvin shall be for the endowment of a chair or professorship in the school of theology in said university. And it is further agreed that said endowment shall remain intact, and only the interest or income be used to support said professorship. "And it is further agreed that said J. J. Garvin shall hold said professorship and receive the income from said endowment as soon as it shall become available as his in said university. It is further agreed by and between the aforesaid parties that the said J. J. Garvin shall be the agent of the board of trustees in the management of the endowment secured by him, and in selling or investing said funds he shall consult the board of trustees. It is further agreed that until the full amount of twenty-five thousand ($25,000.00) dollars has been raised, and the interest or income made available, the said J. J. Garvin may collect funds for his support to the amount of $1,500-including the income from endowment already secured." salary, as long as he may remain a professor | university, but according to the rules and regulations of the corporation none can be established. By reason of the agreement between Garvin and the corporation whereby he was entitled to a portion of the donation secured from Mrs. Fruit upon the same being realized by the corporation, he is an interested party in this cause. No consideration was in fact paid or given by the corporation to Mrs. Fruit for her promised donation. Upon such facts the court concluded, among other things, that there was practically an entire failure upon the part of the U. S. Grant Memorial University and its successor, the claimant, to accept and carry out the conditions of Mrs. Fruit's donation so as to make her promise in regard to the matter binding on her estate; that not only were the conditions of the donation never complied with, but the proceedings in regard to the matter were such as to indicate a determination never to comply therewith. Upon that and numerous other legal conclusions specified by the trial court it was determined that plaintiff had no cause of action, and its claim was accordingly dismissed with costs. From the judgment entered in ae The corporation, in passing the resolution aforesaid, did not purpose doing more than to formally name a chair or professorship in the university the "Rev. John Bean Chair," leaving the question of whether the professorship should be established for practical purposes in the institution to depend on success by said Garvin in accumulating the fund of $25,000 with which to endow the chair. Mrs. Fruit was never informed of the condition precedent to the Rev. John Bean chair being supplied by an occupant with active duties to perform in the said institution. Said Garvin never obtained any substantial additions to the fund pledged by Mrs. Fruit, and hence | cordance with the decision of the court this there never has existed any such professorship in the institution conducted by said corporation as that called for by Mrs. Fruit's donation, except in name. Shortly before her death Mrs. Fruit made a new will, in which, in the usual form, she revoked her former will. After her death said last will was duly established in the probate court for Sauk county, Wis. Thereafter the U. S. Grant University, a corporation, and the successor of the U. S. Grant Memorial University, filed a claim against the estate of Mrs. Fruit for the amount of her donation aforesaid. Such proceedings were had respecting such claim that the judgment of the county court in the matter was carried for review to the circuit court for Sauk county, Wis., where a trial was had, resulting in a decision, as to the facts, in accordance with the foregoing, specific find ings being filed embodying the same, and other facts disclosed by the evidence, including the following: The name of the Grant Memorial University was changed to the U. S. Grant University subsequent to the adoption of the pretended acceptance of Mrs. Fruit's proposition to the corporation to establish a chair of practical theology in its institution, and its location was changed from Athens to Chattanooga, all without her knowledge or consent. The money provided by her for a scholarship was never devoted to that purpose. In accordance with the understanding between the corporation and said J. J. Garvin, he was permitted to retain the whole thereof and to appropriate 20 per cent. of it to his own use. Not only was no scholarship such as that called for by Mrs. Fruit's donation actually established in the appeal was taken. Tenneys, Hall & Swansen (Sanborn & Sanborn, of counsel), for appellant. F. R. Bentley and Grotophorst, Evans & Thomas, for respondent. MARSHALL, J. (after stating the facts). It is considered that the judgment rendered in this case must be affirmed, if for no other reason, because the condition upon which Mrs. Fruit promised to endow a professorship in the U. S. Grant Memorial University has not been complied with. The sole consideration contemplated for such promise was performance by the corporation of such condition. Total failure on its part respecting such performance leaves such promise without any consideration to support it. A careful reading of the evidence found in the record, after giving due weight to that which the court rejected-waiving for that purpose the question of whether the ruling in respect to such evidence was proper or not-fails to satisfy us that the findings of fact, to the effect that the donee never aсcepted Mrs. Fruit's promise to endow a chair of practical theology in its university by an unconditional executed promise to establish such chair as the donor understood was to be done as a condition precedent to her being bound by her promise, are contrary to the clear preponderance of the evidence. We must give to the language of the writing which Mrs. Fruit signed and transmitted to the donee a reasonable construction. The words "said chair to be named * * * at once on condition," etc., were doubtless in |