44 Iowa 143 | Iowa | 1876
Lead Opinion
The land in controversy, it is claimed, was sold to the defendant, John Scott, October 7,1870, for the delinquent taxes of 1869, amounting to $23.75. The land was entered on the tax list as “in S. E. S. W. Sec. 2, Tp. 83, R. 24 — 15 acres.” The deed purports to convey “15 acres in S. side S. E. quarter of the S. W. quarter of Sec. 2, Tp. 83, North'of Range 24, West.” The certificate of purchase had been altered by the erasure in front of the description S. E. S. W. Sec. 2, etc., and the words “ in S. side ” had been written in ’over the erasure.
The plaintiff acquired its title to the property in controversy by conveyance from John I. Blair. And it was the owner of about sixty-four acres of land in that quarter section, the remaining portions of the land having been laid off into town lots and for right of way of the C. R. & M. R. R. In December, 1872, the plaintiff sent its agent to Nevada, in Story county, for the purpose of paying the taxes of 1872, and of redeeming from sale the land in controversy and other lands. He left with the auditor the following description of land, to-wit: “ The west one-half and south part of southwest quarter of Sec. 2, Tp. 83, R. 24 — about sixty-four acres, west and south of Ames for 1869,” and stated that he wished to redeem the same from sale, and requested the auditor to make out a certificate of redemption and the tax receipts for taxes upon other lands, and he would go on West to pay taxes in other counties and return in a few days and pay the amount. Accordingly they were made out and he returned and paid the amount specified in, and took with him, the certificate and tax receipts. Hpon the list or description left with the auditor, he had noted these words, “ forty A sold,” and the cer
Whether if the sale and conveyance were of the same described land as that listed, taxed and delinquent, the purchaser might not by proof aliunde show what land was embraced in his conveyance, we need not here determine. All that we do now decide on this point is, that when the certificate of sale and tax deed describe land, having no necessary identity with that which has been taxed and is delinquent, they do not of themselves constitute sufficient evidence of’ sale to uphold the tax deed but negative it.
The further complications of this case abundantly vindicate the wisdom of this holding. Here, the plaintiff was the owner of twenty-four acres in that forty; fifteen acres only have been listed or taxed. Which fifteen acres, out of the twenty-four acres, would pass by a sale under the description on. the tax list, would be a difficult question to determine. But if it be conceded that the tax deed is not conclusive upon the tax purchaser as to the sale of the land described in such deed, and it be also conceded that the testimony of the treasurer be correct, ‘‘ that undoubtedly it was sold by the description as shown in the tax list,” and also that in fact the record of sales so shows, still the tax purchaser will be in no better position.
The description in the tax list and record of sales is as follows: “In S. E. S. W. 2, 83, 24, 15 acres.” This description is void for uncertainty. It will be remembered, that the evidence shows that the plaintiff and its grantor were the successive owners of 64 acres in that quarter section. Forty acres had been sold in one parcel and that had been redeemed, leaving twenty-four acres yet unsold for taxes. Out of this twenty-four acres, fifteen acres were sold for taxes under the description above, there being no designation what' fifteen acres were sold, nor in what part of the quarter section it was situated. In Bosworth v. Fahrenholz, 3 Iowa, 84, a description in a deed for “forty feet of lot No. 2, in block No. 2, Davenport,” was held void for uncertainty. In Lafferty’s
These cases prove abundantly that if the conveyance had been in accordance with the tax list, no titl¿ would pass. There is no evidence tending to identify, the fifteen acres, even if such proof would be competent. It follows that no right whatever was acquired by the purchaser either under the sale or deed.
Having found that there was no sale of the land described in and hence that no title was conveyed by the deed, and that the description oven in the tax list is too vague and uncertain to authorize a sale, which, unaided will pass any title, it follows that the conveyance by the grantee in the tax deed could pass no title to his grant.ee; and it becomes unnecessary there■fore to inquire whether there was a redemption or not. The
Reversed.
Rehearing
ON REHEARING.
Upon the petition of defendants a rehearing was .granted in this cause. At the June Term, 1876, the plaintiff replied to the petition, and the cause was again submitted.
The principal question in this case is whether the assessment and sale were by a description sufficiently certain and definite to authorize the execution of the deed, under which defendant claims title to the land. It is admitted that the description in the deed is definite and certain. The defendants insist that the deed is authorized by the assessment and sale.
The land was sold in 1870, for the delinquent taxes of 1869. It is described in the tax list as follows: “Owner’s name, John I. Blair, in S. E. S. W. Sec. 2, tp. 83, range 24,15 acres. The treasurer who conducted the tax sale testifies • that the land was sold by the description as shown in the tax list. The deed conveys 15 acres in the south side, S. E. quarter of the S. W. quarter of said section. If it appears from the evidence and the pleadings that John I. Blair, owned only 15 acres in the S. E. S. W. section 2, and that these 15 acres were on the south side of said forty acres, then the assessment and sale of 15-acres owned by John I. Blair in said forty, was an assessment and sale in fact of 15 acres in the south side of said forty, and authorized the execution of the deed. Let us see whether it appears from the pleadings and proofs that John I. Blair, at the time of the assessment, owned but 15 acres in the forty in question, and that on the south side.
This action was commenced on the 4th day of November, 1873.
The petition alleges that the plaintiff is now (on the 4th of
The defendant, Scott, testified: “I am acquainted with the location of the land and have been familiar with it for about ten years; the remainder of the forty acres in which this tract is located is laid off as the town plat and built up as the town of Ames, and used for the depot and right of way of the railroad ; the railroad runs on the north line of the fifteen acres.” These allegations in the petition and this testimony of Scott contain all that there is upon the subject of the ownership of the forty in question. Now, suppose everything be conceded for these allegations and this testimony, that can by possibility be claimed for them; suppose it be admitted that in November, 1873, when this action was commenced, and in April, 1874, when, Scott testified, the whole of the forty acres in question, except fifteen acres in the south side, was laid off in the town of Ames, and occupied by the track of the Cedar Eapids & Missouri Eiver Eailroad; what do these facts prove? Simply that in 1873 or in 1874, Blair could not have owned any portion of this forty except fifteen acres in the •south side. They prove nothing as to the ownership of the forty in 1869, when the assessment was made, or in 1870, when the sale was made. This court cannot take judicial notice of the time' when the town of Ames was laid out, and the Cedar Eapids & Missouri Eiver Eailroad was constructed through this land. For aught that appears when this land was assessed John I. Blair owned the whole forty, or none of it. It does not, therefore, ajopear, that an assessment of fifteen acres owned by John I. Blair, in the S. E. S. ~W. Sec. 2, refers to any particular portion of the forty. The assessment and
If the deed had been simply such as the. assessment and sale authorized, it would have described the land as the fifteen acres in the S. E. S. W. Sec. 2, owned in 1869 by John I. Blair. It is very plain that it would be incumbent upon any one, asserting a claim to a specific fifteen acres of land under such a deed, to prove that the land he claims was owned in 1869 by John I. Blair, and that it was conveyed by the designation in the deed.
It seems to us to be equally clear that it is not competent for the treasurer, by simply putting an unauthorized description in the tax deed, to relieve the holder of the tax title of a burden which otherwise would be cast upon him, and throw upon the original owner a burden which otherwise he would not have to bear. We feel satisfied that when an assessment was introduced, which could refer to no specific property unless aided by extrinsic proof, it was incumbent upon the party
It follows that, whether or not the evidence warrants the affirmative finding that plaintiff owned twenty-four acres in the forty in question, the conclusion reached in the foregoing opinion is right, and must be adhered to. The judgment of the court below is
Reversed.