196 Iowa 799 | Iowa | 1923
I. Mary A. Crampton was the owner of Lot 7, Block 3, Eiee’s Addition to the town of Marshalltown, Iowa.
In October, 1915, Edwin G-. Burgess, the life tenant under the will of Mary A. Crampton, died. D. J. Ferguson had acquired all except the bne-fourth interest of Ella L. Harris in the lot, and occupied the premises for about eight years, up to 1911. After D. J. Evans received his tax deed of January, 1911, he went into possession of the property. Afterwards,
II. It is the claim of plaintiff that she is the owner of a one-fourth interest in the entire lot; that D. J. Evans is the owner of three fourths of the north 60 feet; that A. C. Carlson is the owner of three fourths of the south 120 feet of said lot. Plaintiff avers that the tax deeds issued to D. J. Evans on January 3, 1911, and March 6, 1915, are void; that no duty devolved upon her to pay assessments and taxes until her title vested, at the termination of the life tenancy in October, 1915; that it was the duty of the defendants Ferguson, Evans, and Carlson, as grantees, to pay the taxes for which the property was sold; and that it was particularly the duty of said defendants to pay said taxes because the contract by which Ferguson purchased the interest of the life tenant and the three-fourths interests of the remaindermen provided- that Ferguson should pay said taxes; that the tax deed of January 3, 1911, is void on account of various irregularities in the tax sale proceedings on which the deed is based, which claimed irregularities we will later consider. Plaintiff further claims that the taxes involved were allowed to go unpaid and the property to be sold through fraud and collusion, designed to cheat the plaintiff out of her interest in the property.
Defendant D. J. Evans bottoms his title obtained to the lot on his two tax deeds, executed to him by the treasurer of Marshall County on January 3, 1911, and March 6, 1915, and also upon a conveyance from D. J. Ferguson and wife, dated December 16, 1916.
In a cross-petition, defendant Evans asks to have the tax deed of January 3, 1911, reformed so as'to correspond with the certificate of purchase ’at tax sale, so as to convey the whole of said lot, instead of only the south 150 feet thereof. Also, it is
Defendant Carlson claims under deed from D. J. Evans, and his pleadings and claims are identical with those of Evans.
Defendants Marshall County and A. M. Gause, treasurer of Marshall County, plead that the tax deed of January 3, 1911, was executed in pursuance of the sale of said Lot 7 on December 2, 1907, said sale being for the two paving assessments against said lot; and that, by mistake and oversight, the treasurer executed said deed for only the south 150 feet of said lot, whereas the sale had been of the whole lot, and 'thq proceedings leading up to the execution of said tax deed had been for and covered the whole of said lot; and that said deed should have covered the whole of said lot. Said defendants disclaim any interest in the property.
Defendants D. J. and Marie Ferguson aver that they have sold all their interest to D. J. Evans, and disclaim any interest in the property.
The main issue may be briefly stated thus:
Plaintiff has a one-fourth interest in the lot in controversy, if the tax deeds under which defendants Evans and Carlson claim title are void. If the deeds are valid, plaintiff’s interest in the property has been extinguished.
III. We will first consider plaintiff’s claim that the tax deed of January 3, 1911, is illegal and void because of failure to comply with the requirements of the statutes in the proceedings leading up to the issuance of the deed.
• This lot is located at the northeast corner of Church and Sixth Streets, extending its length 180 feet on Sixth Street and its width 60 feet on Church Street. Both streets bordering on the lot in question were paved in the year 1903, and the lot ivas assessed for paving on each one of these streets. On the south 150 feet of the lot there was levied an assessment for paving Church Street of $218.25, made on December 28, 1903. On February 1, 1904, there was an assessment made against the whole lot for paving on Sixth Street in the amount of $406.75. These paving assessments were certified to the treasurer’s office December 31, 1904. Delinquent tax list was published in the fall of 1905, for tax sale to take place on December 4, 1905, for
“City of Marshalltown, special paving 1905, owner’s name, Crampton, Mary, description of property, Rice’s south 150 feet Lot 7, Block 3, tax $218.25. Interest and costs $46.66, total $264.91; and owner’s name, Crampton, Mary A. (heirs). Description of property, Rice’s Lot 7, Block 3, tax $406.75, interest and costs $78.99, total $485.74.”
Delinquent tax list was published in the fall of 1906, for sale to take place December 3, 1906, containing the statement:
“General taxes, for 1905 and special taxes for 1906, also for previous years when so specified. ’ ’
In said tax list appeared:
“City of Marshalltown, special paving. Owner’s name, Crampton, Mary. Description of property, Rice’s Lot 7, Block 3, tax $406.75, interest and costs, $152.88, total, $559.63. Owner’s name, Crampton, Mary, description of property Rice’s S. 150 feet Lot 7, Block 3. Tax, $218.25. Interest and costs, $81.21. Total, $299.46.”
In the fall of 1907, delinquent tax list' was published for sale to take place on December 2, 1907, in which appears:
“General taxes for 1906 and special taxes for 1907, also for previous years when so specified.”
In said delinquent tax list so published appears specifications as follows:
“Special paving, owner’s name, Mary A. Crampton (heirs). Description'of property, Rice’s Lot 7, Block 3, tax, $625. Interest and costs, $323.49, total, $948.49.”
It will be observed that in the list for 1905, under “special paving 1905,” were listed the south 350 feet of said lot, and also the whole lot, for two separate items of assessment. In the 3906 list, the same arrangement was followed. In the 1907 list, the whole lot was listed in one item. In 1905 and 1906, the property was offered for sale for each separate assessment, but no-bids were received. At the sale of December 2, 1907, the whole lot was sold for the total paving tax assessed against it, in the amount of $948.49, to the Barber Asphalt Paving Company. On May 5, 3930, the certificate of purchase was sold by the Barber Asphalt Paving Company to defendant D. J. Evans, for
Plaintiff’s contention, outside of the claimed fraud and collusion of Ferguson and Evans in allowing the property to be sold for the paving taxes, thus depriving plaintiff of her interest the lot, is that the tax deed of 1911 is'void because the advertisement, the notice of delinquent tax sale, the certificate of purchase issued, the expiration notice, and the tax deed, all specified that the lot
“Special paving. Owner’s name, Mary A. Crampton (heirs). Description of property, Rice’s Lot 7, Block 3. Tax, $625. Interest and costs, $323.49. Total; $948.49.”
The certificate of purchase at said sale recites that the purchaser paid the taxes, interest, and costs “as below specified on the following described land and town lot for the year A. D. 1906, assessed to Mary A. Crampton (heirs). Description of property, special paving, Rice’s Addition, Lot 7, Block 3. Year 1905. Consolidated $625; interest, $322.34; costs, $1.55; total $948.49.” It'recites, also, that W. J. Hayes, for the Barber Asphalt Paving Company, purchased the whole of said lot for $948.48, the whole amount of taxes, interest, and costs then due and remaining unpaid on said lot, that “being the least amount bid for.”
The notice of expiration states that the lot “was sold for
“No irregularity or informality in the advertisement shall affect the legality of the sale or the title to any real estate conveyed by the treasurer’s deed under this chapter, and in all cases its provisions shall be sufficient notice to the owners of the sale thereof.”
See, also, Showler v. Johnson, 52 Iowa 472; Davis v. Magoun, 109 Iowa 308.
Code Section 1444 provides that the treasurer’s deed shall be presumptive evidence of certain facts and conclusive evidence of certain facts. The latter are that the manner in which the listing, assessment, levy, notice, and sale were conducted was in all respects as the law directed; that all the prerequisites of the law were complied with by all. the officers who had any part in any transaction relating to or affecting the title conveyed or purporting to be conveyed by the deed. The conclusive portion of this section covers substantially every alleged defect in the tax deed that plaintiff complains of. The notice of expiration provided for by Code Section 1441 is'to be served on the persons in possession, and also on the person in whose name the
IV. Plaintiff alleges that this corner lot could not be legally assessed for the two street improvements. Undoubtedly, this corner lot was subject to assessment for the two street improvements. Durst v. City of Des Moines, 164 Iowa 82; Morrison v. Hershire, 32 Iowa. 271. Anyway, any objection on account of the two assessments against the corner lot would have to be raised on appeal to the district court. Also, any objection to the amount of the assessment in excess of one fourth of the value of the lot would have to be raised in objections before the city council, and on appeal. No appeal was taken from the action of the city council. Durst v. City of Des Moines, 150 Iowa 370, and 164 Iowa 82; Hansen v. City of Missouri Valley, 178 Iowa 859.
V. It is insisted by plaintiff that the whole lot could not legally be sold for the aggregate of the two assessments. As before mentioned, the property was twice advertised for sale for the separate assessments before it was advertised and sold for the aggregate assessments, and no sale resulted. This contention is without merit. Code Section 1425 provides:
“Each treasurer shall, on the day of the regular tax sale each year or any adjournment thereof, offer and sell at public sale, to the highest bidder, all real estate which remains liable to sale for delinquent taxes, and shall have previously been advertised and offered for two years or more and remained unsold for want of bidders, general notice of such sale being given at the same time and in the same manner as that given of the regular sale. ’ ’
The court below was in error in holding that the tax deed for the north 30 feet of Lot 7 was void, unless the alleged fraud and conspiracy on the part of D. J. Ferguson and D. J. Evans are established. We will presently consider the charge of fraud and conspiracy.
D. J. Evans testified that in 1910 he bought the tax certificate issued at the tax sale of December, 1907, from the Barber Asphalt Paving Company, and paid the company $1,255 in cash, and later received a deed from the treasurer; that purchase of this certificate by him was purely a business transaction of buying something; and that there was no arrangement with Ferguson concerning it.
D. J. Ferguson, witness for defendants, testified that-he bought a three-fourths interest in the lot and moved on it; that there were two small old houses on the lot; that he rented the south house from 1903 to 1910, and occupied the north house himself; that he paid taxes on the property up to 1910; that he bought a three-fourths interest in the property through Joseph Tuffree, and.never had any negotiations with anybody else about buying the property; that, when he bought the property, he did not know that plaintiff held a one-fourth interest in it; that
D. J. Evans, as witness for defendants, testified that, when he received the first tax deed, he read it, and insisted to the treasurer that he ivas entitled to a deed for the whole lot, and the treasurer told him that the south 150 feet only could be sold for paving, and that he could give him a deed for only that much; that later he sold the south 120 feet to Albert C. Carlson; that, up to the time he sold to Carlson, no one ever
Albert C. Carlson, called by defendants, testified that he bought the south 120 feet of the lot from Evans for $2,000, May 7, 1914; that'he had expended in improvements on the property, since he bought it, $4,700; that, when he bought it, he had no knowledge that plaintiff was making any claim to the property; that, until this suit was begun, plaintiff never made any claim to the property against him.
The burden was on plaintiff to prove the alleged fraud. Upon a careful consideration of the evidence and any reasonable inferences that may be drawn therefrom, we are unable to find any support for the charge that Ferguson and Evans conspired and fraudulently acted together for the purpose of injuring plaintiff. We fail to locate in the record any testimony to support a finding that Ferguson, in connivance with Evans, permitted the property to be sold at tax sale for the paving assessments, to the end that Evans should acquire the property through tax sales. We do not think that the decree entered has sufficient support in the record.
VII. The entire lot was properly sold at the tax sale of December, 1907, and the certificate of purchase recited that the whole lot was sold. In accordance with such sale and certificate, Evans, who purchased the certificate of the Barber Asphalt Paving Company, was ei~titled to a deed for the whole lot. The execution of the deed for only the south 150 feet of said lot was a mistake. The deed should have been for the entire lot, and defendants Evans and Carlson are entitled to have the deed
Results in reversal on appeal of Evans and Carlson, and affirmance on appeal of Ella L. Harris. — Reversed on appeal of defendants; affirmed on appeal of plaintiff.