130 Iowa 286 | Iowa | 1905
Jonathan W. Oattell died testate, in September, 1887, seised of eighty acres of land in Polk county, this state, being the lands in controversy, and described as the N. % of the N. E. °f section 30, township 79, range 23. He left surviving him only his widow, Deborah Oattell, and Margaretta Grimes, a daughter by adoption, and who was at the time the'wife of E. F. Grimes. The will of said Jonathan W. Oattell was duly admitted to probate. Some controversy has been indulged in by counsel for the respective parties to this case as to whether by the terms of the said will the widow, Deborah Oattell, took title to the real estate in question in fee simple, or, on the other hand, the devise to her was of a life estate, with remainder over to the daughter, Margaretta Grimes. Eor reasons that will be manifest as we proceed, we shall not undertake to decide the controversy thus presented. Eor the purposes of the case, however, we may acquiesce in the contention of counsel for appellee, and concede that Deborah Oattell took title under the will in fee.
Hp to the time of the death of Jonathan W. Oattell the property was in the occupancy of himself and wife, and living with them was their said daughter, her husband, and children. After the death of Oattell the occupancy continued in his widow, and the daughter and her family, until March, 1894, when the daughter died intestate, leaving surviving her the said E. E. Grimes, her husband, and five minor children; the latter being the present plaintiffs, and the former the present intervener. Thereafter no change in occupancy occurred until in September, 1902, when Deborah Cat-tell died, also intestate. The property has ever since been occupied by the intervener and the plaintiffs, his children. It has been assessed and taxed at all times in the name of J. W. Oattell. It appears that in the year 1896 the said property had been allowed to go to tax sale, the certificate of sale being issued to one IT. M. Hollins, who thereafter assigned the same to one W. O. Ourtiss, and he, in
It will now be apparent that there can be no materiality in the question whether Deborah Oattell took title in fee or only a life estate under the will of her husband. If title in fee, the plaintiffs inherit directly from her; if a life estate, the plaintiffs inherit through their mother. And the character of plaintiffs as proper persons to redeem, if redemption shall be considered allowable, is the only matter of importance attached to the subject.
There was also filed an affidavit of said Witter of publication of notice for tax deed, and which, omitting reference to the formal parts, recites in substance that he is attorney for G. D. Ellyson; that service of notice of expiration of time of redemption from tax sale “was served upon J. W. Cattell, the party in whose name the above-described property was last assessed, by publication in the ‘ Spirit of the West,’ a newspaper published in Des Moines, Polk county, etc., for three consecutive weeks, the first publication being on Eebruary 14, and" the last February 28, 1900, as shown by certificate of publication hereto attached, said J. W. Cat-tell being a non-resident of the county of Polk, state of Iowa.” The notice, published as in said affidavit stated, is addressed as follows: “ To J. W. Cattell (Party in Whose Name the Property Herein Described was Last Assessed).” It is signed: “ G. D. Ellyson, Owner and Holder of the Certificate ”— and gives notice of the tax sale on December 8, 1896, and that the sale was made to Rollins and the certificate assigned to Ellyson, and states that the right of redemption will expire and a deed issue unless redemption is made within 90 days. Attached, also, is an affidavit of the publisher of the Spirit of the West, stating the dates of
To summarize the situation, it will be observed (1) that the notice first referred to is not addressed to Jonathan W. Cattell, the person in whose name the lands were assessed; (2) that the acceptance of service of such notice by Deborah Cattell and Edwin E. Grimes does not state the place where service by acceptance was made, or at whose request or under whose direction service was made; (3) the affidavit of Witter, having’ relation to service of such notice, does not state the place where such service was made or under whose direction; (4) the affidavit of Witter to publication of notice to J. W. Cattell, as the person in whose name the land was last assessed, does not state by whose direction the service was made, and the affidavit was of publication of a notice to a man known to be dead, although classed as a nonresident of the county and state. Upon these matters is based the contention of plaintiff for the. invalidity of the deed, and their right to redeem.
The things prerequisite to the issuance of a tax deed as found in the statute may be thus summarized: The holder of the certificate shall cause to be served upon the person in possession, and also upon the person in whose name the land is taxed, if such person resides in the county, in the manner provided for the service of original notices, a notice signed by him, his agent, or attorney, stating the date of the sale, etc. Service may be made upon nonresidents of the county by publication. “ Service shall be complete only after an affidavit has been filed with the treasurer showing the making of the service, the manner thereof, the time when and place where made, and under whose direction the same was made; such affidavit to be made by the holder of the certificate or by his agent or attorney; . . . which affidavit shall be filed by the treasurer, . . . and the right of redemption shall not expire until ninety days after service is complete.” Code, section 1441.
With one accord these cases hold that the provisions of statute are mandatory and absolute. In Cornoy v. Wetmore the lands were taxed to “ Johnson, Lot M. & Wm.” Personal service was had on Wm. Johnson of a notice addressed to him alone, and -publication of notice was had as to Lot M. Johnson; the notice being addressed to him alone. The deed was held void. The notice should have been addressed to “ Johnson, Lot M. & Wm.,” according to the reading of the tax books. The earlier cases are collected and the point of decision stated, and we need not again go over them. We may, however, quote this from the opinion in Bradley v. Brown: “ The requirement of the statute appears to us to be absolute. . . . Courts have no power nor authority to dispense with the positive requirements of the statute upon the ground that they are unnecessary.” In Barcroft v. Mann the defects were that the affidavit did not state the time or place of service. As to the latter requirement, we said: “The object of the statement of the place where the service is effected is not so manifest. It is a part of the'return, however, by the statute, made essential to a complete service, without which the issuance of a deed by the treasurer is unauthorized.” In Eoy v. Houstman there was failure only to serve notice upon one who was in constructive possession of the property (vacant lots).
Of course, the attempt to serve notice upon J. W. Cat-tell, known to be deceased, was an idle proceeding. As there was no person in existence to whom the land was assessed and taxed, the situation may be said to be analogous to that
There is no theory upon which the relief prayed in the cross-petition can be granted. Should we concede that by any possibility defendant could have a right of lien upon the lands by reason of the simple payment-of'money by him to or for and on account of Deborah Cattell, still we must hold that there is nothing in the record upon which to base a decree in his favor.
For the reasons pointed out, the decree must be, and it is, reversed.