Bolinger v. Henderson

23 Iowa 165 | Iowa | 1867

Lowe, Ch. J.

1. taxes and redemption, In order to determine whether the court did right or wrong .in sustaining the motion m question, it will be necessary to state concisely the substance of the petition,-'that it may be seen what was the matter stricken therefrom,' and the relation it bore to the plaintiff’s cause of action.

The statement is, that the plaintiff was a non-resident of the State; that in the year 1856 he became the legal owner of the lot in question; that he had an agent here to pay taxes, and that he remitted funds to him for that purpose; that in January, 1865, he learned the property had been sold for delinquent taxes. He forwarded money to his agent, Philip H. Nickodémus, to redeem the same; that the agent applied at the office of the clerk of the District Court for that purpose, and so informed the clerk, and told him he wished to clear it of all claims or liens, on account of tax sales. The clerk examined the books and informed the agent that the amount required for that purpose was $16.10, which was paid, and the clerk issued a certificate of redemption from a sale made of said lot in 1863 for the delinquent taxes of 1862, and assured him that was all there was against said lot. He also paid the taxes for the years 186L-5, and then rested with the impression that all antecedent taxes had been paid. He ascertained, 'however, in January, 1866, that the lot had been sold for the taxes of January,’ 1861, and purchased by other parties, and after several mesne conveyances the title had vested in the present defendant,, who sets up claim thereto, and refuses to surrender the same, the time of redemption having expired. It is also alleged as a part of plaintiff’s cause of complaint entitling him to redeem, that he had paid the taxes on said lot for the year 1861, through an agent he had at that time, by the name of John Hice, and that in fact no delinquent taxes existed against his lot for that year. Such is the substance of the case which plaintiff makes for himself in his petition; he does not assail or draw in question the regularity of the tax sale under which defendant claims, but insists that although the time for redemption under the statute had expired, he was nevertheless entitled to redeem or remove a cloud from his title for the reasons set out in his bill.

That he is so entitled on one of the grounds which he alleges, namely, payment of the taxes on the lot for that year, is clear, and, therefore,, a demurrer to the petition, as a whole, could not have been successfully made.

But what effect in law or equity is'to be given to the 'other facts in the bill; that which relates to plaintiff’s attempts to redeem the lot from all tax sales, at a time when it was competent for him to do so, but when he failed, because of the mistake or misdirection of the clerk ? Should the mistake of the clerk, or the negligence of the owner in this regard, affect the rights of a good faith purchaser %

We are to suppose that an ordinarily prudent business man would know whether he had paid the taxes on his property for any given year or not, and that if he did not know, that he would, at least, consult the highest sources of information, namely, the tax list .and sale books in the treasurer’s office.

s. — general redeem. A general offer to the clerk to pay all taxes in arrfear, or to redeem property sold for taxes, as in this case, without offering any specific amount, or without redeeming or requesting to redeem from the specific tax sale under which the defendant claims, would not raise an .equity in favor of plaintiff for relief as against an innocent purchaser. Blackwell on Tax Titles, 506, 507.

3. pleading redundant ’ remedy. To plead to such matter, would simply embarrass the record with immaterial issues. If so, it follows that the facts so stated are redundant or immaterial, and as such, it is the right of the adverse party to have the same removed from the . pleadings on motion. Rev. § 2946.

It is true, perhaps, that if the whole cause of action, as stated in the petition, is irrelevant or redundant matter, 'the proper mode of raising the question would be by demurrer, for it then bcomes a question of entire insufficiency, not of partial irrelevancy.

On the other hand, if the petition is good in part as stating a cause of action, but objectionable in containing whole statements of irrelevant or redundant matter, which cannot be made the subject of a material issue, the true course is to purge the same by motion. White v. Kidd, 4 How. Pr. 68; Benedict v. Dake, 6 Id. 352; Fabricotti v. Lawritz, 3 Sandf. S. C. 743.

The ruling below is sustained.

Affirmed.