¶1The court below having found that the consideration for the note in suit was the attempted transfer of the right to cut the standing timber not previously paid for, and as such finding is supported by the evidence, it only remains to consider whether the consideration failed by reason of the inability of the plaintiff and his associates to transfer to defendants the right stipulated for. As to the timber standing on the lands in section 16,'the finding of the court that they had no title to or right to convey it is also sustained by the evidence. As to the other lands, if we assume that the tax deed and certificates of sale were, under the act of 1867, admissible without proof of their execution — and it is not clear that they were — still they prove only the fact of a sale, and, to give them any effect upon the title of the owner of the lands, it is necessary that the authority of the person executing them to make the sale should be shown. The levy of the taxes, and the other acts to be done before a tax sale can be had under the laws of Wisconsin, must be proved to show authority in the officer to sell and to give effect to his certificate or deed. This was not done, and consequently the tax deed and certificate fell short of establishing the defence.
¶2Judgment reversed and new trial ordered.