72 Iowa 619 | Iowa | 1887
The plaintiff bases his right to redeem from the tax sale upon the ground that no proper proof of
In Trulock v. Bentley, 67 Iowa, 602, the statute was held to apply to a case where the deed was executed without authority, by reason of the fact that due proof of service of the expiration notice had not been filed. While the case at bar is not an action for the recovery -of real property, as in that case, yet the defendants are in possession, and the case is presented to us upon the theory that the statute is applicable, unless the deed was executed under such circumstances that we should be justified in considering it as entirely void, and, though recorded, as insufficient to cause the statute to commence to run. Due proof of service of notice not having been filed, it must be conceded that the deed was executed without authority, and a minority of the court thought, in Trulock v. Bentley, above cited, that such deed, though recorded, could not be regarded as sufficient to cause the statute to commence to run. The majority thought otherwise, and the principal question now presented is as to whether the case at bar falls within the rule in that case.
The plaintiff contends that this case is different, in that he shows that the tax deed which he assails appears upon its face to have been executed without due proof of service of notice having been filed. The showing relied upon consists of a recital in the deed, setting out as proof of service the affidavit of a publisher of a paper, as proof of publication of notice in the paper; which proof, under the rulings of
The doctrine of Trulook v. Bentley is that, where it appears affirmatively that notice was given, and something is filed as proof of service of notice, and is defective only by reason of some irregularity, and a deed is executed sufficiently formal to convey title, whoever holds under such deed may, after the lapse of five years from the recording of the deed, assume that its validity can no longer be questioned, and may govern himself accordingly. It appears affirmatively in the case at bar that notice was duly given; and, while the defect in the proof may, perhaps, be regarded as somewhat greater than in Trulock v. Bentley, we cannot say that, if the defect in that case should be deemed a mere irregularity, the defect in this case should not be. "What was filed as proof was unquestionably deemed sufficient by the treasurer. We think, indeed, that, at the time it was filed, a considerable part of the profession deemed such proof sufficient. After so long a silence on the part of the holder of the patent title, valuable improvements may have been made by those claiming under the tax title. The equities in this case in favor of the defendants appear to us as persuasive as in Trulock v. Bentley, and, considering that this case falls substantially within the rule of that case, the judgment must be Affiemed.