73 Iowa 412 | Iowa | 1887
II. It is shown that plaintiffs claim under the patent title, and that defendants’ and the intervenor’s title is based
“Swan, May 18, 1881.
“ I hereby accept due, legal, timely and sufficient service of the within notice on me, and waive copy.
“ G. W. Wakefield.”
“ State of Iowa, Marion County — ssI, Robert Anderson, being duly sworn, depose and say that on the 17th day of May, 1881, Elliott & Cathcart appointed me their agent to serve the within notice on Geo. Wakefield; that on the 18th day of May I served it on him by reading it to him and asking him to accept service, which he did by signing the acceptance on the back of this notice.
“ Robert Anderson.
“ Sworn to before notary public, May 28, 1881.”
The service is shown by this proof to have been made, in the language of the statute just quoted, “in the manner provided by law for the services of original notices.” (See Code, § 2603.) And the affidavit of service shows that the person making it was the agent of the holder of the tax-sale certificate, complying in this regard with the requirements of the statute above quoted. The record thus shows that the notice required was served upon the person, and in the manner, prescribed by statute. But the sufficiency of the service of notice is otherwise shown. The deed is presumptive evidence of the service of notice, required by Code, § 894. (Fuller v. Armstrong, 53 Iowa, 683.)
IV. The notice served upon Wakefield, as we infer from the record, was not found, but was proved by copy, though counsel for plaintiffs say in their argument that it was found m the proper place. It seems to have been lost from the files of the county officers, as we understand the record. It clearly appears that this was the
Y. The statute above quoted directs that the affidavit showing service shall be entered upon the record. This was not done. Upon this fact counsel for plaintiffs base an objection, claiming that a failure to comply with the statute in this regard invalidates the deed. The provision of the statute upon which counsel rely directs the treasurer as to the discharge of his duty, by providing for a record to be made of a paper, which it wisely provided shall be preserved in that manner. But the rules of the law will not defeat the rights of parties by reason of the failure of officers to discharge their duties imposed by statute. The section quoted cannot be construed to mean that the record alone shall be evidence of the service of the notice. But, indeed, on the other hand, it in express language declares that “ the record or affidavit shall be presumptive evidence of the completed service of notice,” thus plainly providing that the notice, as well as the record, is to be taken as evidence of the fact. If the affidavit may be admitted in evidence when the record exists, it surely may be admitted when there is no record, and if the affidavit is admissible in evidence, if lost, it may be shown by copy duly proved, under familiar rules of the law. In our opinion, the evidence sufficiently establishes that proof of service of the notices in accord with the requirements of the law, both as to the person in whose name the land was taxed and the person in possession, was filed in the proper office.
These considerations lead us to the conclusion that the tax title upon which defendants rely is valid. The judgment for defendants must be
Affirmed.