Cochran v. Ind. School Dist.

50 Iowa 663 | Iowa | 1879

Day, J.

i school ciisíiat*oii0onlndl notice. I. The plaintiff purchased the property at tax sale, and received a certificate, of .purchase before the eondemnation proceedings were instituted. By this purchase he acquired a right to have the purchase money, with penalty and interest, refunded to him within three years, or, if this was not done, to have a deed executed to him conveying an absolute title to the property. This right is a valuable one, and plaintiff could not constitutionally be deprived of it without compensation, ■or, at least, without notice of the condemnation proceedings, which would enable him to assert and protect his rights.

Appellant insists that the statute (sections 1825-1828 of the Code) provides for proceedings against and notice to the ■owner only; that plaintiff was not the' owner at the time these proceedings were instituted, and that, therefore, his rights were taken away without compensation and without notice. . ....

In Severin v. Cole and The B., C. R. & M. R. Co., 38 Iowa, 463, a case not cited by counsel, it was held that, in a proceeding to condemn right of way for railroad, a mortgagee, was an owner under the statute, and entitled to compensation. In this case it is said: “The railroad company cannot obtain,, by proceedings under ad quod damnum, greater rights than it could acquire as an innocent purchaser for value from the owner to whom notice is given.” That ease, in principle,, seems to be decisive of this.

2 _._. • II. It is claimed, however, that a notice was published, directed to the widow and unknown heirs of John Knoppels,. deceased, and to all other persons interested, and that plaintiff was thus notified of the proceedings, to condemn. Section 1827 of the Code provides that the* county superintendent shall give to the owner of the real estate to be condemned “the same notice as is required for the commencement of a suit at law in the District Court.” The agreed statement of facts shows that the plaintiff, at the-time the condemnation proceedings were instituted, was a resident of Pottawattamie county. He could not, therefore, under the statute, be properly notified of the proceeding by publication.

. Affirmed.