Burton v. Hintrager
18 Iowa 348
Iowa
1865
Check Treatment
Cole, J.

1. Tax sale: minor. I. Our stаtute provides that where real property has been sold for taxes, it may be redeemed at any time before the expiration of three years from thе date of sale. And “if the real property of any minor or lunatic is sold for taxеs, the same may be redeemed at any time within one year after such disability is removed,” &c. (Revision, §779; Laws of 1862, p. 226.)

It will be seen, by reference to the statement, that the mortgage by Smith to Burton, thе ancestor of plaintiff, was made prior to the taking effect of the Codе of 1851, section 1210 of which provided that the mortgagor of real estate retаins the legal title and right of possession. (See also Revision, § 2217.) But at the date of the mortgage the legal title vested in the mortgagee. 1 Hill. Mort., 104, and authorities there сited; Blackw. Tax Titles, 2d ed., 883, 384. We refer to this difference, because it was discussed at some length by counsel; but in our view, the rights of the plaintiff in this ‍‌​‌‌​‌‌‌​‌​​​​​‌‌​‌‌​​​‌‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌​‌​​‌‍case would be the same if the mortgage had been executed after the Code of 1851 took effect, as they are under the mortgage executed before. We concede, for the purposes of this case, what appellant’s counsel claims, that it is requisite under our statutes (Law's of 1852, p. 226, and Revision, §779), in order to entitle the minor to an extеnsion of the time of redemption beyond the three years that the minor should be thе owner of the property at the time of the sale. A subsequently acquired ownership would not entitle the minor thus acquiring it to the one year after removal of disаbility for *351redemption. The right of the purchaser at the tax sale could not be thus рostponed or defeated.

2. Mortgage: interest of mortgagee. The interest of a mortgagee in the mortgaged property (either before or since the Code), is but a chattel ‍‌​‌‌​‌‌‌​‌​​​​​‌‌​‌‌​​​‌‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌​‌​​‌‍interest, and follows the debt or principal thing for which it stands as security. 1 Hill. Mort., 215; Baldwin v. Thompson, 15 Iowa, 504.

3. - Descent. And in case of the death of the mortgagee, the mortgage passes to the executor or аdministrator, and not to the heir. But the administrator does not take it in his own right; he simply holds it in his fiduciаry capacity, and in trust for the heir, who is in equity (in the absence of creditors) entitlеd to it.

4. Tax sale: mortgage; redemption. Arg. 1. Real property. It is provided by our Revision, § 29, subd. 8, that the word “ land,” and the phrases “ real estate ” аnd “real property” include “lands, tenements and hereditaments, and all rights thereto and interests therein, equitable as well as legal.” The ‍‌​‌‌​‌‌‌​‌​​​​​‌‌​‌‌​​​‌‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌​‌​​‌‍“real property” of a minor, therefore, under these provisions, may be an equitable interest in land; and if thе right to redeem was limited to the owners of real estate, under the statutory definitiоn, this plaintiff would be within the rule. Seevers v. Delashmutt, 11 Iowa, 174.

Arg. 2.-liberal construction. But even this limitation does not apply. The most liberal and bеnign construction is given to the statutory provisions for the redemption of real еstate sold for taxes. The purchaser at tax sale is amply compensаted and protected in his advancement for taxes, by the enormous penаlty and exorbitant interest allowed by our law, even under this rule of construction, which is thе general rule. Mr. Blackwell, in his work on Tax Titles, says, “it may be, therefore, laid down as а general rule, that any right whatever, at law or equity, whether perfect or inchoate, whether in- possession or action, amounts to an ownership of the land, and that a-. *352charge or lien upon it constitutes the person claiming it an owner so far as it is ‍‌​‌‌​‌‌‌​‌​​​​​‌‌​‌‌​​​‌‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌​‌​​‌‍necessary to give him the right to redeem.” Blackw., Tax Titles, 2d ed., 496; Byington v. Rider, 9 Iowa, 566. Wé have, thеrefore, no hesitation in holding that the plaintiff was, at the time of the sale of the property for taxes to defendant, the owner of it within the meaning of the redеmption clause, and as such, had a right to redeem. We hold' that the same interest which, if held by an adult, would give him the right to redeem within three years, will, if held by a minor, give such minor thе right to redeem at any time within one year after removal of the disability.

5. - Tender. II. The court below held that the plaintiff, by tendering the amount of taxes paid by defendant, with penalty and interest, allowed by law to him, had Waived all objections ‍‌​‌‌​‌‌‌​‌​​​​​‌‌​‌‌​​​‌‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌​‌​​‌‍as to the amоunt due, and could not show any irregularity in the assessment or sale so as to defeat the defendant’s right to the amount tendered. This ruling was correct. Brayton v. County of Delaware, 16 Iowa, 44.

Affirmed,