22 Iowa 411 | Iowa | 1867
The facts in this case are exceedingly complicated. It may well be doubted whether the chronological order of stating the facts, as above adopted, is the most perspicuous; and yet, therefrom, a person desiring to do so, may very easily ascertain the facts bearing upon tiie questions discussed in this opinion, as well as the many questions made by the counsel in the case, but which are not herein discussed.
There is a section of the statute, passed April 2, 1860, and which took effect July 4 of that year, and now a part of the Revision of 1860, which has an important bearing upon the determination of this cause. It is as follows:
“Sec. 811. That in all cases where real estate is mortgaged or otherwise incumbered to the school or university fund of this State, the interest of the person who holds the fee title shall alone be sold for taxes, and in no case shall the lien or interest of the State be affected by any sale of such incumbered real estate made for taxes.”
It will be observed by reference to the statement of facts, swpra, that the junior mortgagee, Cotting, obtained his decree of foreclosure, and purchased the property in controversy at a sale thereunder, prior to the time of the tax sale under which McKee holds his tax deed. Now, the
The validity of this claim, unconnected with the fact hereafter mentioned, would depend upon the nature of the title acquired by the tax sale and deed. If the tax title is a derwatiw one, then the purchaser or grantee takes the title of the owner against whom it was taxed, with all its rights, privileges and incumbrances. For if he derwes his title from the tax owner, so to speak, he wdll take it with the benefits of the covenants running with the land, and the burdens attaching to it. A stream cannot rise higher than the fountain.
On the other hand, if the tax deed clothes the purchaser with a new' title in the nature of an independent grant from the sovereign authority, barring or extinguishing the prior titles, then the purchaser takes the estate without any possible incumbrances, and of course, without any claims or equities growing out of or connected with the prior titles.
It is said by Mr. Blackwell' in his valuable treatise on tax titles, that there are no express adjudications upon this point. He then proceeds to state his view, in substance, that when the tax is a-charge upon the land alone, 'and no resort in any event is contemplated against the
While our revenue law authorizes and directs the treasurer to distrain personal property of the delinquent, and sell the same for the payment of taxes, it is not necessary that such distress be made, even where there is' such personal property, before the land can be sold, so as to pass a title to the purchaser receiving a deed therefor. Indeed, taking our whole revenue law together, a fair construction of it in this particular is, that the land is both continuously and ultimately liable for the taxes on it, and that the right to seize and sell personal property is, in effect, in aid of the collection of the taxes, and for the more speedy and certain realization of them. It is, too, quite clear and really beyond doubt that the sale of land for taxes, and a tax deed pursuaut thereto, pass to the grantee a title other and often better than that of the person in whose name the land was listed. The tax title holder, McKee, would hardly now, even for this case, be content with the doctrine that the tax purchaser, under our law, only acquired the interest of the person in whose name the property was listed. Although our statute is not strictly within the rule or class as stated by Mr. Blackwell, and first above given, under which a tax sale and deed have the effect to destroy all prior interests, and clothe the purchaser with a new title, yet it is very cer
While it is perhaps not necessary in this case to determine that under our statute a tax sale and deed does not. pass the title of the owner, but operates to destroy all prior interests, and vests the purchaser with a now and '¡independent title, yet it seems from the very nature of the case that it must be so. Let us examine the question by the aid of illustrations.
Suppose the owner of the legal title, while in the actual possession of his real estate, makes a written and recorded contract of sale with another, whereby he is to convey and deliver possession of the same to the purchaser upon the payment of the purchase price, at the expiration of five years from the date of the contract of sale. In the mean time, the owner continues in possession and lists the real estate in his own name, and it is properly assessed and taxed to him. Before the expiration of the five yearn, the laud has been sold to a third person, for taxes, and a tax deed made to such tax purchaser. At the maturity of the contract of sale, the purchaser goes to the new tax owner, tenders his money according to his contract, and demands a 'deed. The tax purchaser, for the reason that the land has risen in value and is now worth largely more than such contract pi-ice, refuses to receive the money or to make a deed. Can the purchaser enforce his contract in equity against the tax purchaser? To state the question is to answer it. No lawyer would claim that, under our revenue law, the tax purchaser could be required to specifically perform the contract of the- owner. And why ? Simply because the title he acquired by his tax purchase and deed was not a derivative title. He did not purchase the equities or liabilities of the- owner of the land, but he acquired the title
Again, suppose a person had settled upon government land and made valuable improvements thereon, but had never entered the land or acquired title thereto. After several years of occupancy, during which he has made more extended and valuable improvements, he sells the land to another, and that other to a third, and he still to another, all the conveyances being with warranty. During some one of these ownerships, another person rightfully enters the land and acquires title thereto from •the government. But in the mean time the land has been listed and taxed in the name of the owner (see Stryker v. Polk county, 22 Iowa, and authorities there cited), and is sold for the taxes due upon it. The tax purchaser obtains possession under his tax deed. Thereupon the person who entered the land and obtained the patent from the government, sues for and recovers possession of the land from the tax purchaser. The tax purchaser then, claiming that,
These two illustrations, one being of an equity or right against, and the other an equity or right in favor of the former owner, are sufficient to manifest under which of the two rules or classes of statutes, as stated by Mr. .Blackwell, our revenue law properly falls. It is not within the language of either rule as stated by him. But since, by its fair construction as a whole, it is intended to vest the purchaser with a complete and perfect title to the land and not with the right or interest only of the former owner, in whose name it urns listed, there can be no w7ell founded doubt that our revenue law belongs to the first of the classes named, supra, to wit: That in which the tax deed has the effect to destroy all prior interests in the estate, and vest the purchaser with a new and independent title, freed from all liens and incumbrances except
But a further illustration of this view is found in this case itself. McKee, claiming the equity of redemption which existed in Cotting as a junior mortgagee, alleges in his answer and cross petition that the plaintiff took possession of the mortgaged property, under his foreclosure proceeding and sale (to which Cotting was not a party), and that plaintiff had received the rents and profits thereof up to the time of filing the cross petition, and that the same amounted to eighteen hundred dollars ; and McKee claims and asks that so much of these rents and profits as shall be necessary, be applied in the payment and satisfaction of the plaintiff’s mortgage, and that he have judgment for the balance. This is, upon, the appellee’s theory, a legitimate claim. Let us see how it would work. Plaintiff’s" mortgage debt is about one thousand dollars; McKee’s claim for rent is eighteen hundred dollars, and if sustained by proof, would leave a balance due him of about eight hundred dollars, and for which he would be entitled to judgment; so that by buying the tax title at ninety dollars, bo becomes the owner of the fee simple title to the land, as well as of Cotting’s mortgage thereon, and also of a claim or right against the plaintiff to a judgment of eight hundred dollars. This claim of McKee is a logical deduction from his premises, and, if his theory is correct, his legal right to all. this is clear and certain. If he has a right, by his tax purchase and- deed, to any of the rents and profits he has an equal right to all; and this, too, whether they exceed or fall short of the plaintiff’s mortgage claim. The error is fundamental. A sale of land for taxes does not, under our revenue law, pass to the purchaser, mere dioses in action or equitable rights which belonged to the person in whose name the land was listed or taxed, by reason of his being such “ former owner.”
■ And where, as in Byam v. Cook (21 Iowa), the owner, •as against the government or the school fund, has but a contract of purchase, upon which a balance remains due, •the tax purchaser and grantee may have, by reason of his tax deed, a right to pay such balance and receive the ■patent or deed therefor. But it was held in Gwynne v. Neiswanger (20 Ohio 556), that the title created by a tax sale is a legal title, and, when not good at law, that a court of equity has no power to aid the purchaser in completing his title. It was also held in that case that a tax title was a breaking up of all titles, and had nothing to do with a previous chain of title; that a tax sale operated on the land and not on the title.
This ruling decides the case; and renders it unnecessary to examine the other question made by counsel. Plaintiff is entitled to a decree barring the equity of the defendants in the property.
Reversed.