Heaton v. Knight

63 Iowa 686 | Iowa | 1883

Seevers, J.

1. TAX SALE and deed: insufficient notice of application for deed: person to whom taxed. Before a deed can be lawfully executed by acounty treasurer for lands sold by him for delinquent taxes, a notice that a deed will be applied for must be rr servec*- by the party entitled thereto “upon the Person possession of the land or town lot, and also upon the person in whose name the same is taxed, if such person resides in the county where the land is situated.!’ Code, § 894,

John C. .Harvey was in possession of the land in controversy at the time the notice was served on him, on the 7th day of July, 1879. The land was assessed and taxed to said Harvey for the years 1877 and 1878. In October, 1878, Harvey conveyed the premises in controversy to the plaintiff, but the deed was not filed for record until November, 1879. The land was assessed by the assessor for the purpose of taxation in 1879 to the plaintiff, and the assessor’s book so showing was returned to the auditor’s office in May, 1870. Before causing the requisite notice to be served, the person entitled to a deed made inquiries as to who was in possession- of the land, and made seai’ch in the recorder’s, auditor’s and treas - urer’s offices to ascertain the name of the owner; but he did not examine the assessor’s books for 1879 in the auditor’s office.. It will be seen that the notice was not served on the person in whose name the land was listed for taxation, and the question to be determined is, whether this is a fatal objection to the treasurer’s deed, or rather whether such person, being the owner, is entitled to redeem. The statute declares that the notice must be served on the “person in whose name the (land) is taxed.” This evidently means at the time the notice is served; and the statute was clearly enacted for the benefit of the owner. Hall & Speneer v. Guthridge, 52 Iowa, 408. At the time the notice was served, no taxes had been levied for the year 1879.

Strictly speaking, it possibly can be said that the land was not taxed at all, or to any one, for that year. But it had been listed for taxation, and had been assessed to to the plaintiff. This was all that could be done at that time in the direction of taxation.

The records in the auditor’s office showed this to be so, and we think, under the statute, a listing and an assessment of land by the assessor should be construed as taxing for the purpose of the service of the notice which must pi’ecede execution of a treasurer’s deed. It should be presumed that the assessor would, in the performance of his duty, ascertain the name of the owner, if a resident of the county, and'assess the land to him. The intent of the statute is that such owner should be served with notice, if possible; and it is assumed that, if service on the person in possession and to whom it is taxed is made, the service will, ordinarily at least, have been made on the owner. To all intents and purposes, we think the listing and assessment under this statute should be construed within the statutory definition of ‘‘taxed.”

2.-:-: action to redeem: tender, sufficient. It is, however, urged by the appellants that, before the deed can be set aside or redemption allowed, it must appear that all taxes due upon the property have been Pa^ by th® person seeking to redeem. Code, § gpy

Goodall, one of the defendants, was county auditor in 1879, and, a few days after the treasurer’s deed was executed, a party acting for the plaintiff “made a tender of the amount, and offered to pay off the taxes due on the land in controversy” to said Goodall as auditor.

The tender was rejected, and in the petition the plaintiff offered and expressed a readiness to pay whatever amount was found due. "We think this was all he could be required to do. Binford v. Boardman, 44 Iowa, 53; Reed v. Thompson, 56 Id., 455.

AFFIRMED.