State ex rel. The Town of La Valle vs. Supervisors of Sauk County. provision, and is therefore invalid, because of the proviso that it shall not apply to the county of Grant. The learned circuit judge held the statute invalid on the authority of McRae v. Hogan, 39 Wis. 529. In that case the court had under consideration ch. 458, P. & L. Laws of 1869, which required the town treasurers of the several towns in the county of Chippewa to pay over to the county treasurer all moneys received by them for highway taxes on all lands lying north of a specified line running east and west across said county, and requiring such county treasurer to pay over the same to the board of supervisors of that county upon the order of the board. Such board was authorized and required to expend such moneys in building wagon roads, north of said line, up the Chippewa river and its tributaries. It was held that the act was in violation of the constitutional provision above quoted, and therefore invalid within the rule laid down in State ex rel. Peck v. Riordan, 24 Wis. 481; State ex rel. Keenan v. Supervisors, 25 Wis. 339; State ex rel. Walsh v. Dousman, 28 Wis. 541. The general law provided that highway taxes raised in any town should be expended, by the proper town officers, for the construction and repair of highways within such town; but the statute of 1869 deprived the town officers of that power in a few towns in Chippewa county, and conferred it upon the county board of supervisors, while the power remained intact in all other towns in the state. This was held a violation of the constitutional rule. The act of 1881, now under consideration, relieves all of the towns in the state, outside of Grant county, from the expense of erecting and maintaining the bridges specified in the act, and casts the burden of doing so upon the respective counties, while each town in Grant county is compelled to erect and maintain any such bridges within its limits at its own expense. There is no difference in principle in the two cases; and so the circuit judge correctly held. State ex rel. The Town of La Valle vs. Supervisors of Sauk County. It was argued by counsel for the appellant that, although the proviso in the act of 1881 is invalid, it does not vitiate the whole act, and that the residue of it may be upheld as a valid law. The rule in such case is that, unless the void part was the compensation for or inducement to the valid portions, so that the whole act taken together warrants the belief that the legislature would not have enacted the valid portions alone, such portions will be operative; otherwise, not. Among the cases in this court which lay down or recognize this rule are the following: Slauson v. Racine, 13 Wis. 398; State ex rel. Walsh v. Dousman, 28 Wis. 541; Slinger v. Henneman, 38 Wis. 504; Dells v. Kennedy, 49 Wis. 555; State ex rel. Cornish v. Tuttle, 53 Wis. 45. In some of these cases the valid portions of the acts under consideration were held operative, while in others the invalid portions were held to vitiate the whole act. Each case was decided upon its own peculiar facts and circumstances, as every case must necessarily be which involves the determination of the effect of invalid provisions in an enactment containing, also, provisions which, had they stood alone, would have been valid. In the present case there is no room for the application of this rule, for the reason that the legislature has not enacted that the statute should extend to Grant county, but has expressed a contrary intention. By no possible construction can the statute be held to be operative in Grant county; and it is essential to its validity that it be operative in that as well as in every other county in the state. It was further maintained on behalf of the appellant that, although ch. 315, Laws of 1881, is not a valid law, still sec. 1319, R. S., as amended by ch. 126, Laws of 1879, remains in force, and the mandamus prayed for may be issued under that section as amended. Undoubtedly, sec. 1319, as so amended, is in force; but that section leaves the sum which shall be levied upon the county for the purposes specified in the act Wheeler, Adm'r, vs. Single. entirely in the discretion of the board of supervisors. The board is only required to raise, for the specified purposes, such sum "as it may deem proper." It is very doubtful whether a writ of mandamus can properly go to compel a public officer or board to do a given act when such officer or board is vested with a discretion in the premises so nearly absolute; but, however that may be, the application for a mandamus in the present case is based upon sec. 1319, R. S., as amended by the act of 1881, and not upon that section as amended by the act of 1879. By the Court.-The order of the circuit court, denying the mandamus, is affirmed. WHEELER, Administrator, etc. vs. SINGLE. February 3 March 3, 1885. Estates of decedents — Fraudulent conveyances - Restoring mutilated deed - Cloud upon title- Evidence - Presumption as to delivery. 1. Under sec. 3832, R. S., when there is a deficiency of assets, an administrator may bring an action to cancel and remove from the records conveyances made in fraud of the creditors of his intestate, and to restore altered or mutilated deeds and the record thereof. 2. In the absence of evidence there is a legal presumption that a deed was delivered at the date of its execution. 3. Upon the evidence in this case (stated in the opinion) it is held that a certain conveyance by plaintiff's intestate was not made with fraudulent intent, and that a certain deed was delivered before erasures therein were made. 4. The erasure, after delivery, from a deed and the record thereof, of the description of a part of the lands covered thereby, does not divest the title of the grantee, and subsequent voluntary conveyances of such land by the grantor may be annulled for the purpose of restoring the mutilated deed and record and subjecting the land to the payment of claims against the estate of the grantee therein. Wheeler, Adm'r, vs. Single. APPEAL from the Circuit Court for Marathon County. This action was commenced in 1883 by the plaintiff, as administrator of the estate of Charles A. Single, late of the county of Marathon, who died in 1880, against the widow of the intestate. It was brought by direction of the county court, pursuant to sec. 3832, R. S., the assets of the estate in the hands of the plaintiff being insufficient to pay the claims allowed against the estate. The objects of the action are (1) to set aside a conveyance of real estate executed by the intestate to his brother, and certain mesne conveyances executed by the brother and his grantees, under which the title to such real estate appears to be in the defendant; and (2) to restore a deed of certain other lands executed by such brother to the intestate, and the record thereof, both of which are alleged to have been mutilated after delivery of the deed. Two causes of action are stated in the complaint. The first relates to lot 4, in block 11, in the city of Wausau, and the other to lots 6, 7, 8, and 9, in Single's addition to that city. The facts, as they appear from the pleadings, proofs, and findings of the court, are as follows: In the year 1857 the plaintiff's intestate, Charles A. Single, and his wife, the defendant, executed to James Single a conveyance, with warranty, of all the real estate owned by the intestate, all of which was in Marathon county. This conveyance included all of the above lots. At the same time, James Single executed to Charles a mortgage on the same real estate, to secure the payment of $20,000. These instruments were properly executed and duly delivered, and soon after execution were recorded in the proper register's office. James paid no other consideration for the conveyance, and never entered into possession of any of the property. At that time Charles was indebted to divers persons. A particular statement of such indebtedness will be found in the opinion. Wheeler, Adm'r, vs. Single. In 1867, James Single and wife conveyed lot 4, in block 11, to Benjamin T. Single, a son of the intestate and defendant; and in 1870, Benjamin conveyed the same lot to the defendant; also, in 1867, James and wife executed a con-. veyance to two daughters of Charles A. and the defendant, Josephine and Alice Single,- of lots 6, 7, 8, and 9, before mentioned; and the daughters conveyed the same lots to their mother, the defendant, in 1871. In 1859, James Single and wife executed to Charles A., the intestate, a conveyance of lots 6, 7, 8, and 9, with two other parcels, which are included in the deed of 1857 to James; and the same was duly recorded. Subsequently, the descriptions of the above lots in the deed were erased, and the same descriptions were obliterated from the record, but by whom, or at what particular time, does not appear. Neither does it appear when this deed was delivered to the intestate; but it was found with his papers after his decease. The remaining parcels of land, so conveyed to James Single in 1857, were by him conveyed to the defendant in 1859. Some of the above mesne conveyances were imperfectly executed. Charles A. Single remained in the possession of all the lands conveyed to James in 1857 until his death, and had full control of them. They were assessed to him, and he paid the taxes. He made improvements upon them; even executed conveyances of some of them; and directed the making of the conveyances above mentioned. It does not appear that anything was ever done with the $20,000 mortgage. After the death of Charles A. Single, claims against his estate were duly allowed to the amount of over $4,000. All of such indebtedness accrued after the fall of 1870. The circuit court found the above facts substantially; and in addition thereto, found that the conveyance of 1857 to James Single, although voluntary, was made in good faith, and without any intent to hinder, delay, or defraud either |