179 Iowa 293 | Iowa | 1916
On and prior to March 16, 1910, defendants owned Lot 3 of Everett’s Subdivision 1 of the official plat of NW14 NW'/i ¡Section 4, in Township'78 North, of Range ■24 West of the 51 h P. M., in Des Moines; and one Erne! Lockband owned the BE1/! of Section 24 and the NE% of 8-oelion 25, in Township 28 North, of Range 28, in Gay County, Kansas. They negotiated an exchange through agents, one Price acting for the Mullins, and the Wilson Land & Loan Company for Lockband, and consummated (he same, Lockband conveying the Kansas land, estimated io be worth $8,000, to defendants, subject to a $2,000 mortgage, and defendants signed deeds to the property in Des Moines, valued at $12,000, Avilh AArarranties “excepting tAvo mortgages of $1,500 each and 1909 taxes and mortgage to Grant Mcl’herrin of $2,500, Avith 8 per cent interest.'” "When signed by defendants and their Avives, the exception Avas follOAA'ed by the words, “Avhic.h second party assumes and agrees to pay,” but the agent of Lockband objected; and, after John Mullin had obtained the consent of Dennis Mullin over (he. telephone, as he pretended, John struck this clause out, and deliArered (he deed to said agent and received that to the Kansas land. It turned out that Dennis Mullin knew nothing of such change and newer con-sen ted thereto.
If, upon filing in the name of the grantee, the conveyance related back to the date of the delivery of the deed by John Mullin to the Wilson Land & Loan Company for Lock-band, then, of course, it must be found that no breach was proven. This is conceded by appellee, who contends that the Mullins were not divested of title until the name of the grantee was inserted. The evidence leaves no doubt that, after the deed was signed, John Mullin was authorized to deliver it to Lockband or his agent, and that it was handed to his agent with the design of delivering upon receipt of the conveyance of the Kansas land. In other words, the grantors had done everything they' could to part with the title. That there was delay in inserting the name of the grantee was no fault of theirs. The Mullins then ceased to own the property, and any court would have recognized the equitable title as in Lockband, independently of the deed,
“Q. What was the value placed on the Kansas land an acre? A. $25 an acre, with a mortgage of $2,000 on it; and T submitted the proposition to Mr. Wilson to, change equity for equity and assume everything that was against each property, and I mentioned some taxes and one thing or another. He said, £T do not know whether my man would do that or not but I can find out, I think, before you have to go home.’ I was to come home that evening. Q. You mentioned the value of the Kansas land; what value ivas placed upon the Des Moines property? A. $12,000, with an incumbrance there of 'something over $(>,000 or about $6,000. Q. Of incumbrance? A. Yes, sir. * * * t went down to the depot; — it ivas nearly train time — John Mullin and myself — and Mr. Wilson come down there and said he had heard from his man and that he would trade, but Avould rather Ave would pay some back taxes that Avas there. I says, DYe can’t do that,’ I says, 'If we trade, you have got to assume liens and everything, taxes, mortgages and interests up to that time and all back taxes.’ We talked it over there until nearly train time — just had a feiv minutes. He said he Avould trade that way if John would get. the deed back the next day. Well, we just left it that Avay, verbal contract. John agreed to go and get the deed and get back there not later than two days.”
The deed was returned as proposed, and Wilson thus described what occurred:
“I examined the deed at the time of its delivery. The words 'which second party assumes and agrees to pay’ were stricken from the deed by John Mullin. The deed Avas presented wherein the grantee assumed and agreed to pay, this being contrary to the contract. I refused to accept
Mrs. Ronrk confirmed this account.
“The remaining interest belonging to one who has pledged or mortgaged his property, or the surplus of value which may remain after the property has been disposed of for the satisfaction of liens.”
The exchange was of what defendants had in the property in Des Moines for what Lockband had in the Kansas land. Though relative values and amounts of the incumbrance were estimated in making the deal, there is no evidence of a sale by either party for a specified sum, and no showing that a part of the consideration to be paid was withheld to cover the amount of the McPherrin mortgage. If the respective grantees were to assume incumbrances, as testified to by Price, the deal was not consummated on that basis, for the assumption was stricken from the deed by agreement. This circumstance tends strongly to confirm our conclusion that the amount of the mortgage debt was not withheld as piart of an agreed consideration. Un
Even if it were to be held that he, by taking the deed, stepped into the shoes of Lockband by having his name inserted in the deed instead of Lockband’s, this would be true only as to what appeared on the face of the deed, and, looking at that, no liability would be created for the payment of this mortgage. Such was the ruling of the district court.
The judgment entered in favor of plaintiff is reversed and the dismissal of the counterclaim affirmed. — Reversed in part and Affirmed in part.
Wednesday, February 14, 1917.
“The lien on real estate for taxes has no existence unless there be some statute creating it, and such statute must be strictly construed.” Desty on Taxation, p. 734; Eagle Mfg. Co. v. City of Davenport, 101 Iowa 493; Jaffray v. Anderson, 66 Iowa 718.
We have discovered no section of the Code, other than Section 816, referred to in the opinion, directing how special assessments may be made liens on realty. Section 826 of the Code, on which appellee relies, merely provides that:
“A certificate of levy of such special assessment, fixing the number of installments and time when payable, certified as correct by the clerk, shall be filed with the auditor of the county, or of each of the counties, in which such city is situated, and thereupon said special assessment as shown therein shall be placed on the tax list of the proper county.”
“After a contract has been made by any city for the making or reconstruction of any street improvement or sewer, the clerk shall file with the auditor of the county, or each of the counties, in which said city is situated, a written or printed copy of the notice of the resolution provided for, with a true copy of the proof of publication thereof, together with a certificate of the clerk that an ordinance or resolution has been adopted directing ■ the making or reconstruction of said street improvement or sewer. Thereupon all special taxes for the cost thereof, or any part of said cost, which are to be assessed and levied against real property, or any railway or street railway, together with all interest and penalties on all of said assessments, shall become’and remain a lien on such property from the date of the filing of said papers with the county auditor until paid, and shall have precedence over all other liens except ordinary taxes, which shall not be divested by any judicial sale; but such lien for street improvements in case of abutting property shall not cover to exceed one hundred and fifty feet in depth from the abutting line. Any such assessment against a railway or street railway shall be a first and
It is to be' observed that, though this is not to be done until after the contract is made by the city, doing so is not exacted by the clerk of the city at any specified time, or before any date indicated. The evident design of the legislature was to indicate a method by which the special taxes levied or to be levied might be made a lien upon the property, and of course the only purpose to be served by this was to define the order of precedence between liens and indicate when such special taxes should become a lien as between vendor and vendee. • Anyone interested may, by causing compliance with this section, effect a lien, but compliance therewith is not exacted by any official at any specified time, save that it must be after the city has entered into the contract; and therefore there is no room for any presumption in favor of the existence of such a lien, save as compliance with the statute is proven. As laid down in Page and Jones on Taxation by Assessment, Section 1277:
“The burden of proof rests upon the party who claims that- a lien exists, and who is trying to enforce it, even if, by statute, land is to be sold for the non-payment of assessments in the same manner as it is sold for taxes, and if, by statute, tax sales are presumptive evidence of the validity of the tax.”
' See Dederer v. Voorhies, 81 N. Y. 153. Section 1400 of the Code has reference to general taxes only, dealt with by Title VII of the Code, in which that- section is found.
We are of the opinion that the warranty contained in the deed executed by the defendants was not shown to have been breached, and for this reason adhere to the conclusion reached in the former opinion. Opinion adhered to.