67 Iowa 222 | Iowa | 1885
After the expiration Of two years and nine months from the date of the sale, plaintiff caused the notice prescribed by section 894 of the Code to be served on defendant. The notice was served by the sheriff of the county, and he indorsed a return thereon showing the date of the.service and the manner in which it was made, which was by reading the notice to defendant and delivering a copy thereof to him. The notice and return were then filed in the office of the county treasurer, and after the expiration of ninety days from the date of such filing the deed was executed, the sheriff’s return being the only evidence on file at that time that the notice had been served.
The question in controversy between the parties is whether the treasurer, on this state of the record, had authority to execute the deed. Section 894 of the Code is as follows: .“After the expiration of two years and nine months after the date of the sale of the land for taxes, the lawful holder of the certificate of purchase may cause to be served upon the person who is in possession of such land, and also upon the person in whose name the same is taxed, if such person reside in the county where the land is situated, in the manner provided by
There is no express provision in section 894 as to the person or officer by whom the service may be made, and plaintiff contends that, as the notice is required to be served (when the party to be served is a resident of the county) in the manner provided by law for the service of original notices, the various provisions of the statute which prescribe the mode of service of original notices, the officer or persons who are competent to serve them, and the manner of proving the return, are applicable to the service and return of such notices, and hence that the return of the sheriff was competent evidence of the manner of the service of the notice in question; and as ithad been served in the manner prescribed by
But these are matters which are governed by subsequent provisions of the section. It is provided that “ service shall be deemed completed when an affidavit of the service of such notice, and of the particular mode thereof, duly signed and verified by the holder of the certificate of purchase, his agent or attorney, shall have been filed with- the treasurer,” and this affidavit is made presumptive evidence of the service of the notice, and it is the only evidence of that fact which is required to be filed or preserved. It is not contemplated that any other return of the service shall be made, and as it is required to be made by the holder of the certificate, his agent or attorney, it is equally clear that the service can be made only by such holder, his agent or attorney. When the treasurer executed the deed in question, then, he had no competent evidence on file in his office that the notice had been served, and in the absence of such evidence we think he had no authority to execute the deed. The affidavit is not only the only competent evidence of the fact and manner of the-service, but the service is not deemed complete until it is filed with the treasurer. The period allowed the owner of the;
We think, therefore, that the district court rightly held that defendant’s right to redeem the land had not expired.
Affirmed.