46 Iowa 583 | Iowa | 1877
Lead Opinion
The evidence shows that Estes, the purchaser at the tax sale was notified by the defendant that the sale was erroneous, and made through mistake, and the necessary amount to satisfy the claim of Estes was tendered to him. Walter W. Smith was the holder of the patent title to the land, and conveyed the same to the plaintiffs by warranty deed, on the llth day
Under these circumstances we are of opinion that the assignment of the certificate of sale to the plaintiffs was, in its legal effect, a redemption by the owners of the land from the tax sale, and that if the defendant were to execute a deed to the plaintiffs, it would have no greater effect or force than a certificate of redemption.
Counsel for appellants urge that the sale of the land for taxes frees it in the hands of the purchaser from any and all liens thereon for delinquent taxes for prior years, and the cases of Preston v. Van Gorder, 31 Iowa, 250, and Bowman v. Thompson, 36 lb., 505, are cited in support of such rule.
The cases cited hold that the land is free in the hands of the purchaser at the tax sale after the treasurer’s deed has been made, but no question is made as to the rights of the purchaser, he being the holder of the original title. It certainly cannot be claimed, if the owner of lands should purchase the same at tax sale where part of the delinquent taxes were by mistake omitted from the sale, or redeem from a sale made to another, that this would operate as a discharge of prior delinquent taxes omitted from the sale by mistake. A contrary rule is recognized in Shoemaker v. Lacey, 38 Iowa, 277. The rule contended for by appellants would obtain if a stranger to the original title were now presenting this certificate and demanding a deed.
It is true these plaintiffs acquired title to the land in question after the tax sale. It was, however, before the expiration of three years from the sale. We think they are precluded from acquiring a tax title to the land so as to defeat the payment of prior taxes thereon to the same extent as though they were the owners at the time of the levy of the taxes. See Stears v. Hollenbeck, 38 Iowa, 550, and cases there cited; Smith v. Lems et al., 20 Wis., 370.
Finding as we do that a deed would confer no title upon ■the plaintiffs, it is not necessary to examine the other questions discussed in argument.
Affirmed.
Dissenting Opinion
dissenting. — The defendant, the treasurer of 'Hamilton county, refuses to execute to the plaintiffs, the •holders of a tax certificate, a tax deed, as called for by the ■certificate. The reason for such refusal seems to be based •upon two grounds: First. There was a subsequent sale of ' the land for taxes to one Everts; and, second, the plaintiffs ■have acquired the patent title to the land. In my opinion, ^neither of these reasons is sufficient to justify the treasurer •in withholding the deed.
’ As to the' sale to Everts it may be said that for anything ■which the record shows the plaintiffs may have redeemed ■from that sale, or purchased the certificates, or the sale may •for some reason have been invalid from its inception. It is "certainly not incumbent upon the plaintiffs, in order to show their right to a deed as called for by their certificate, to aver •and show that the certificate issued to Everts is invalid or not outstanding. If, indeed, they should make satisfactory -allegations and proof upon that point, no foundation would be thereby laid for an adjudication against Everts. He is not •a party to this action and cannot be affected by its result. ■Nor could he be prejudiced if without adjudication a deed should be issued to the plaintiffs as they demand. If the sale to Everts is valid he will -upon maturity of his certificate 'become entitled to a deed thereon; and if his rights are supe•rior to plaintiffs’ his deed will supersede any deed which can be issued to them. All questions then in regard to Everts’ rights may be thrown out.of consideration.
The treasurer’s claim is that the plaintiffs in acquiring the certificate have in effect redeemed. Without determining how the transaction should be regarded if the plaintiffs had owed the taxes at the time of the sale, and if liens would be 'divested if a title should result from the sale, it is evident that the plaintiffs’ transaction was not a redemption, but that they succeeded to the rights of Estes of whom they bought. Not the slightest obligation rested' upon them to redeem. There is no reason then for holding that what was a purchase of the certificate in form was not a purchase in fact. In no -view can I regard the treasurer’s answer as showing why the writ of mandamus should not. issue as prayed.
In other respects I am unable to concur in the doctrine of the majority opinion. - I regard it as in conflict with Shoemaker v. Lacey, 88 Iowa, 277, and with the same case, 45 Iowa, 422. The majority opinion holds, in substance, that a sale for the taxes of one year does not divest the lien of taxes for other years, but that such lien will follow the land into the hands of a subsequent purchaser and may be enforced against it. in Shoemaker v. Lacey, it was expressly held that the -treasurer had no authority to make more than one sale. I •think the case should be reversed.