69 Iowa 42 | Iowa | 1886
For the purpose of this case the following facts must be conceded: That the plaintiff is the owner of the patent title to the real estate in controversy, and that the taxes thereon for 1875 were unpaid and delinquent; that the county treasurer duly advertised the real estate for sale on the first Monday in October, 1876; that such sale was regularly adjourned until the fifth day of Feburary, 1877, when it was sold for the taxes of 1875, and a certificate of sale issued to the purchaser, in pursuance of which a deed was afterwards duly executed by the treasurer to one of the defendants; that on the first day of November, 1876, the tax-list for that year came into the hands of the treasurer, and he failed to bring forward and enter on said list the tax of 1875. Because of the failure of the treasurer the plaintiff insists that the sale is invalid. The court adopted this view.
same, in separate columns, opposite each parcel Y. , , , , , oí real property or person s name, on winch, or . , . . , „ . . against whom, any tax remains unpaid tor either J L ’ 0f the preceding years, the year or years tor
which delinquent taxes so remain due and unpaid; and any sale for the whole or any part of such delinquent tax not so entered shall be invalid.” Code, § 845. When the tax-list ifras placed in the hands of the treasurer, on the first day of November, 1876, the tax of 1875 was delinquent and unpaid. lie therefore was required to enter on the tax book or list for 1876 the fact that the taxes for 1875 Avere unpaid. This he failed to do, and the consequence of such failure is declared to be that the sale for such taxes shall be invalid. There is no ambiguity in the statute. Its meaning is clear and certain, and leaves no room for construction. The sale is invalid and void, and without force and effect, at the option of the owner of the patent title, for Avant of poAver to make it, and yet it may be true that the sale and deed would ripen into a perfect title by reason of the lapse of time. Code, § 902; Truloek v. Bentley, 67 Iowa, 602. The power to make the sale is not derived from the tax-list, but from the statute. Abell v. Gross, It Iowa, 171; Preston v. Van Gorder, 31 Id., 250; Parker v. Sexton, 29 Id., 421. If no such power can be found in the statute, then it does not exist.
The power to sell is undoubtedly conferred on the treasurer by statute, but, when exercised under the circumstances above stated, the statute in express terms declares the sale to be invalid. This, it seems to us, is an end of the inquiry. At least this court has so held and determined in Cummings v. Easton, 46 Iowa, 183; Hough v. Easley, 47 Id., 330; Jiska v. Ringgold Co., 57 Id., 630; Parker v. Cochran, 64 Id., 757. In view of these decisions, and their conclusiveness, it would seem that nothing more need be said; but as counsel, with great ingenuity and much earnestness, have pre
II. It is urged that, if the sale had taken place prior to the first day of November, 1876, it would have been valid. This is undoubtedly true, and therefore it is said by defendants that the power to sell is derived from the tax-list of 1875, and that, as the treasurer had complete jurisdiction and power to make or commence the sale, he had the power to complete it. But, as we have seen, the power to sell is derived from the statute, and he had the power to complete the sale upon compliance with the statute, and not otherwise. When he failed to comply with the statute, his power to sell for the delinquent taxes was abrogated or taken away. It seems to us that an act which the statute declares invalid cannot be said to be authorized or recognized by statute. We do not regard it as material whether the sale is absolutely void or merely voidable. In either case the plaintiff is entitled to have the deed set aside.
Tbe judgment of the district court is
Eeversed.