44 Iowa 622 | Iowa | 1876
Lead Opinion
An opinion of this court was announced in December, 1872, affirming the judgments of the District Court. A rehearing was allowed upon a petition of defendant, and-thereupon a majority of the court, as then constituted, reached a conclusion differing from the first decision, and an opinion was filed reversing the decision of the court below. Thereupon plaintiffs filed their petition for a rehearing and the causes have been again argued and submitted.
The questions raised in the cases touching the sufficiency and regularity of the sale and proceedings prior thereto, upon
After the tax sale the president of the Corning Town Company, one of the plaintiffs, and agent of the plaintiff in the other case, applied to the treasurer and clerk of the District Court of Adams county, the land being situated in that county, to pay all taxes due or delinquent upon the property of plaintiffs there assessed, and to redeem from all tax sales, that might. have been made, of such lands. A written list of the property of the parties, including the lands involved in this action, was given to these officers, and they were charged to make a careful examination of the books of the county, for the purpose of ascertaining delinquent taxes and tax sales. A sum of money deemed sufficient was paid to them for the purpose of paying taxes and redeeming from sales. An examination was made, certain taxes were paid, and a sum of money returned to the plaintiffs, with a report that no farther amount was due for taxes or was required to redeem the lands. The treasurer and clerk assured the plaintiffs that all taxes were paid and all sales redeemed from. But the officers did not discover the sale under which defendant’s deed, was made, until the time for redemption had expired, and prior thereto made no report to plaintiffs that such sale had been made. The amount of money they received from plaintiffs and repaid to him was sufficient to redeem from the tax sale under which defendant claims title. The plaintiffs relied upon the officers to make the examination of the records, and made no attempt to do so themselves. They also did not examine the papers received from the treasurer and clerk when they reported the condition of the taxes. The owners of the land had no information of the tax sales until after the time for redemption had expired.
II.. To the decision last announced, reversing the judgment of the court below, I, at the time, dissented, and presented my views of the law in an opinion, consisting largely of the first opinion filed in the cases, so far as it treats
“ The conclusion and arguments supporting it, set out in the first opinion filed in these causes and then approved by all of us, are now, to me, entirely satisfactory, and I think that opinion so fairly and clearly presents the grounds upon which, in my opinion, our decision should be based, that I present it here, with a few additional thoughts, as an expression of my views upon the question involving plaintiff’s equitable right to redeem from the tax sales. It is as follows:
“ ‘ 2. As we have seen, the rights of the plaintiffs in the property in controversy, depend solely upon the effect to be given to their efforts to redeem from the sale.
“‘The rules of law are adapted to the conduct, not of the most alert, nor of the most inattentive, but to that of those of reasonable and ordinary care and diligence in the management of their affairs.
“ ‘ The redemption law is .to be liberally construed. The tax purchaser is not wronged if he receives the amount advanced together with the penalty which the law prescribes. It has even been held in one case that if the purchaser at a tax sale is indebted to the taxpayer for more than the amount of the tax, that this fact operates as an immediate redemption, and renders the deed inoperative. Garknie v. Blake, 27 Miss., 677. But we need not go to that length in order to hold these plaintiffs entitled to equitable relief. It seems to us that, having made this offer to redeem before the defendant became entitled to his deed, they still have the right to do so. This view is in strict accord with Noble et al. v. Bullis, supra. It is not in harmony with the principle recognized in Bolinger v. Henderson, 23 Iowa, 165, which, in so far as it conflicts with the views -here expressed, must be regarded as overruled.’
“ In my opinion, Noble et al. v. Bullis and Bolinger v. Henderson, supra, are in utter conflict. There is no accord in the principles upon which they are respectively based. The later case, therefore, in effect overrules the earlier one. The one first named must be regarded as authority now.
“Now, it seems to me, because he could have been informed by examining the certificates and receipts, that his taxes were not all paid, he cannot be charged with negligence in not discovering the existence of a tax sale from which he had not redeemed. He was possessed of no evidence of such a sale. In my opinion, the decision of the District Court upon this point is correct.”
The decisions in these cases are based upon the doctrine that the tax deeds acquire no validity from the fact that the records upon which they are based are regular, and show that the lands have not been redeemed. If the land-owner has not been in default, and in compliance with the law has paid, or attempted to pay the taxes or redeem from the sales, and has been defeated of his purpose through the negligence or. fault of the officers intrusted with the duty of making and keeping the tax record, he may redeem after the tax deed has been executed. The cases in hand by their facts are brought within the rule of these decisions.
VII. We come now to the second branch of the case, which involves the sufficiency and regularity of the tax sale and other prior proceedings upon which it was based. Plaintiffs insist that the sale was void, and some of the taxes for which the land was sold were illegal. If this be so they ought not to be required to redeem from the tax sale.
“ Section 737, of the Revision, provides that when the name of the- owner of any real estate is unknowp, and the assessor finds it impracticable to obtain the same, no one description shall contain more than 40 acres, and the words, “ owners unknown ” shall be inscribed at the head of the page.
“Sec. 745 provides for the entry on the tax list in the same manner as assessed.
“ Sec. 764 of the Rev., as amended by Sec. 5, Chapter 24, Laws extra session, 8th General Assembly, simply requires that the advertisement shall contain a description of the several parcels to be sold; and section 765 requires that the treasurer shall offer for sale separately each tract or parcel advertised.
“The land was assessed in the smallest governmental subdivision, and all the subsequent proceedings, including the sale, were regularly conducted by the same description, so far as the testimony discloses. There was no illegality or irregularity connected with the sale. The only fact that can be urged against the title of defendant is that at the time of the assessment the records show that the east half of the lands was owned by the Corning Town Company, and the west half by George Loomis.
“ It is doubtful whether the assessor is required to look to the records for the purpose of ascertaining the state of the title. If it is his duty to do so, we cannot conceive of a case in which he could be authorized to say the owner was unknown, for in every case where the title has passed from the general government, and the lands have become taxable, the records would show the title in some one. The presumption is that the assessor did his duty, and that the name of the owner was, in fact, unknown to him. (Blackwell on Tax Titles, 2d ed., 145.)
“But conceding that he should have examined the record, and assessed each portion of the land to its respective owner, yet the error is not of such a character as to render the tax and the subsequent sale void. This is nota case of no assessment; at the most it is one simply of erroneous or irregular
“Sec. 753 of the Rev. provides that ‘in all cases where real property, subject to taxation, shall not have been assessed by the township assessor or other proper officer, it is hereby made the duty of the owner thereof * * * to have the same properly assessed by the treasurer, and to pay the taxes thereon; and no failure of the owner to have such property assessed, or to have the errors in the assessment corrected, and no irregularity, error or omission in the assessment of such property shall affect in any manner the legality of any taxes levied thereon, nor affect any right or title to such real property which would have accrued to any party claiming or holding under and by virtue of a deed executed by the treasurer, as provided for by this act, had the assessment of such property been in all respects regular and valid.’
“It seems needless to urge anything further than this positive provision of the statute to show that the error complained of does not invalidate the sale. Nor do we regard of any importance the fact that a small portion of this land was also ■assessed as town lots for the years 1863 and 1861. The lots were laid out in 1859. In 1860, 1861 and 1862, the land in question was assessed together as unknown, and the taxes for those years were paid by G-eox’ge Loomis.
“But the county and owners of the land seem, at this time, to have ignored the division of a part of this land into town lots. If the taxes on those lots had been paid for the years 1863 and 1861 befoi’e the sale of the 10 acx’es to defendant, it might well be claimed that such payment would defeat the sale of so much of the land as was inclxxded in the town lots. But the payment of these taxes was not made until two years after the sale to defendant. Whatever right the fact of the satisfaction of the taxes upon the entire 10 by a sale thereof may afford the plaintiffs to have refunded to them the taxes paid upon their lots, we are of the opinion that, in
“It follows that the taxes for 1863 and 1861 were valid, and, as under the revenue law of this State a sale will be upheld if any portion of the taxes is valid for which the land is sold (Rev., Sec. 762, Eldridge v. Kuehl, 27 Iowa, 160; Sully v. Kuehl, 30 Iowa, 275; Hurley v. Powell, Levy & Co., 31 Iowa, 64), the defendant acquired an interest in the land by his purchase, without regard to the validity of the school tax of 1857, and his title must be upheld unless plaintiffs have acquired a right to equitable relief by their efforts to redeem the property from the sale.”
They may redeem now upon paying the amount that would have been required when they made the offer. This offer was made in October, 1867; the precise day is not shown in the evidence; it will be presumed to have been on the 15th; the amount and date of the tax sale appear in the record.
A decree will be entered in this court setting aside defendant’s tax deed, and a judgment will be rendered against plaintiffs for the amount required to redeem the lands, which will be the amount of the tax sale with costs, penalty and interest, provided by the statute to be paid upon redemption from tax
With these modifications the judgment of the court below is affirmed. A decree in accord with this opinion will be entered in this court.
Modified and affirmed.
Dissenting Opinion
dissenting. — I have so decided a conviction of the correctness of the majority opinion filed upon the second hearing of this case that I am constrained to withhold my assent from so much of the foregoing opinion as pertains to the question of redemption.
The sale under which defendant claims occurred in October, 1865, for the delinquent taxes of the years 1863 and 1861.
The redemption was sought to be effected by D. N. Smith, president of the Oorning Town Company, and agent of George Loomis, who owned the most of the stock of the company. In order that my view of the question may be unmistakably presented, I set forth the whole of Smith’s testimony upon the subject of redemption, which is as follows: “ In October, 1867, I applied to the treasurer and clerk of the District Court of Adams county to pay all taxes, due or delinquent, upon any and all real property in said county belonging to Loomis and The Town Company, including the land in suit, and redeem all said property that might have been sold for taxes; gave a written list of the land and charged them to examine books carefully
The treasurer’s deed was not executed until the 6th day of October, 1868. The land in controversy was sold for the taxes of 1865 to Jones and Barnett, and they paid the taxes for 1866. George Loomis paid the taxes for 1867, and the defendant paid them for 1868. On the 12th of October, 1868, the defendant procured an assignment from Jones and Barnett of their certificate of purchase. From the year 1863 to 1868, both inclusive, the owners of this land paid the taxes.for 1867, only. It is not claimed that they or their agent supposed or believed that the taxes for 1863 and 1864 had been paid otherwise than through the redemption in October, 1867. If the agent had examined the tax receipts and certificates of redemption he surely would have discovered that he had neither receipt nor certificate of redemption for the years 1863 and 1864. But the evidence shows that, relying upon the officers, he did not examine any of the papers given him, until after he was informed defendant had obtained a deed. This deed was not obtained until nearly a year after the receipts and certificates bad been delivered to the agent. If the agent retained them in his possession during this time, he was negligent in not examining them; and, if he delivered them over to the plaintiffs, they were negligent in not examining them. In either case the owners of the land have-no right to insist that the consequences of the carelessness or omission of the treasurer and clerk, if they omitted a duty, or were careless in its discharge, shall be visited upon the defendant, the purchaser at the tax sale, who was in no way connected with their act. Their own negligence, or the negligence of their agent, contributed to the result, and
The foregoing opinion holds that Bolinger v. Henderson, and Noble v. Bullis, are irreconcilably in conflict, and expressly overrules the former. I am satisfied, upon careful analysis and comparison of these decisions, that there is no real conflict between them, and that both can, and should, be sustained.
The exercise of reasonable care upon the part of the owner of land, would ordinarily enable him to know whether or not tax receipts or certificates of redemption in his possession cover certain years. And, having the means of information, by the exercise of ordinary care, if he chooses to remain igno
I am fully and abidingly convinced that the judgment of the court below should be reversed.