89 Iowa 237 | Iowa | 1893
The mortgage which the plaintiff seeks to foreclose was made by Caleb H. Blood to one Norton on the twenty-eighth day of July, 1879. The plaintiff is now the owner of the mortgage, and it appears to have been given to secure the payment of an honest debt. It is true that it is claimed the mort
It appears to us to be quite apparent from the above statement of facts pertaining to the acquisition of the tax sale certificates that they conferred no right on Clarke or Adams to tax deeds. Morgan had no
And the tax deeds founded on said certificates were invalid, because they were not made for nearly eleven years after the sale. The sale was had on the fourth day of October, 1869, and the tax deeds were made on the fourth day of September, 1880. The three years allowed for redemption expired October 4, 1872, and the time within which tax deeds might issue expired five years thereafter, or in October, 1877. It was held in Hintrager v. Hennessy, 46 Iowa, 600, and that holding has been repeatedly followed by this court, that an action by the holder of a tax deed, to recover possession of the property sold for delinquent taxes, is barred after the expiration of five years from the time when he became entitled to a deed; in other words, a deed made more than five years after the period of redemption expired could not, under the statute then in force, be made the basis of the assertion of an affirmative right. The same statute was in force when the deeds under which the defendants in this action claim title were executed. Applying that rule to the facts in this case, we have the following state of case. The plaintiff is the owner of a mortgage upon the property, made by the owner of the patent title to the land. He has commenced an action to foreclose his mortgage, and there
It is claimed that, under section 897, subdivision 3, of the Code, the plaintiff can not question the validity of the tax deeds, because he does not show'that he, or the person under whom he claims title, had title to the land at the time of the tax sale, and that all taxes due upon the property have been paid by such person, or the person under whom he claims. It is probably a sufficient answer to this position to say that it is the defendants who are asserting the right to defeat the foreclosure of the plaintiff’s mortgage, and in making their defense they show that the tax deeds conferred no title on Adams, the grantee therein. It is shown beyond question that Blood was the owner when he' made the mortgage.. The mortgagee or his assignee asserts the right to foreclose. The defendants are grantees under Blood, and took the patent title with notice of this mortgage. The only ground upon which they base their defense is the tax deeds, which by their very dates show that they were made and delivered long after there was any right to tax deeds, and the evidence shows beyond question that the land was redeemed by Blood. Under these circumstances we know of no rule announced in any case in this court which would preclude the plaintiff from the foreclosure of his mortgage. We think the foregoing discussion disposes of all material questions in the' ca.se. There are positions taken by counsel in argument in addition to those considered which do not appear to us to demand separate consideration, and we need not notice them in detail.
The decree of the district court is affirmed.