67 N.W.2d 528 | Iowa | 1954
The administrator of the estate of Katherine Louise Hoyt having filed an application to sell her interest in certain real estate consisting of a residence property in Sigourney, Keokuk County, to pay costs of administration of her estate, the Iowa State Board of Social Welfare (hereinafter referred to as the Board), intervened, asserting title to said realty by virtue of a tax deed. A second count of its petition of intervention alleged that it held certain liens against the real estate because of old-age assistance furnished to James Marion Gilbert and Martha Ellen Gilbert, the parents of Katherine Louise Hoyt; but since the trial court granted the relief asked for in this count in full and no appeal has been taken from this judgment we give it no further attention. The court denied the relief prayed by the intervenor on Count I of its application, holding the tax deed void. It is from this judgment we have the present appeal.
James Marion Gilbert acquired title to the real estate, which title is involved, in 1920. In July 1935 he made application for old-age assistance, which was granted and payments commenced on August 1, 1935, at the rate of $14 per month. He died intestate a resident of Keokuk County on November 20, 1936, at which time he had received from the intervenor payments totalling $224. A funeral benefit was granted in the sum of $100, making $324 paid to him from the old-age-assistance funds. His surviving spouse, Martha Ellen Gilbert, was granted old-age assistance beginning March 1, 1938, and continued to receive monthly payments until she died intestate a resident of Keokuk County on February 6, 1952. The payments so made totaled $4432.80 to which was added $150 funeral benefits, in all $4582.80.
James Marion Gilbert left surviving him, in addition to his widow, three children: Jessie Jacobs, Katherine Louise Hoyt and Ray A. Gilbert, Katherine Louise Hoyt died intestate in
The sale which culminated in the tax deed relied upon by the Board was held on December 6, 1937, and the property was sold for delinquent taxes for the year 1933 and certain special assessments for paving against the property. Tax certificate was issued to one G. G. Shanafelt, and on November 16, 1938, the Board procured an assignment of the certificate to itself. On April 25, 1939, it procured a tax deed from the county treasurer and promptly recorded it in the office of the county recorder.
I. The appellees contend that the tax sale on December 6, 1937, and the deed later issued under it were void for various reasons. The first challenge to the validity of the sale and deed is that under section 6950-gl, Code of Iowa, 1935, now section 427.9, and section 427.11, Code of Iowa, 1954, the taxes should have been suspended and no legal sale could be had. The Code sections in question provide that all taxes against property of recipients of old-age assistance shall be suspended during the
II. New rules are more firmly settled in the law than that which holds a mortgagee or other lienholder may not acquire a tax title in derogation of the rights of the holder of the legal title or of holders of superior liens. A lienholder ordinarily may redeem from a tax sale to protect his own interests; but such action is a redemption only. He may not acquire the tax certificate for the purpose of procuring a tax deed thereunder and so divesting his mortgagor or other lienor of his title, or superior lienholders of their rights. For that matter, neither may the mortgagor procure a tax title which strips his mortgagee of his lien. The entire matter is thoroughly analyzed and the Iowa authorities collated and discussed by Justice Bliss, speaking for the court, in Koch v. Kiron State Bank, 230 Iowa 206, 214 to 240, inclusive, 297 N.W. 450, 454 to 463, inclusive, 140 A. L. R. 273. Those interested in the Iowa law on this subject may find it thoroughly set forth in the Kiron State Bank case.
There is nothing in the facts before us in the instant case which takes it out of the general rule prohibiting the taking
Nor does it avail the Board that it did not assert its claim until after the death of the recipients. If its tax deed was valid at all, it was valid when it obtained it; and if we should so hold, the effect would be that the beneficiaries might have been dispossessed at any time thereafter. Of course the statute permits of no such interpretation. The Board, holding liens by virtue of the assistance furnished, could not acquire a tax title in
III. Section 447.12, Code of Iowa, 1954, formerly section 7282, Code of Iowa, 1935, provides for proof of service of notice of expiration of the time for redemption from tax sales by the filing of an affidavit showing such service. This affidavit must be filed with the county treasurer, and we have consistently held it is a necessary prerequisite to the issuance of a tax deed. * * the requirements of section 447.12 are mandatory and if the affidavit of service is incomplete and insufficient the right of redemption is not cut off thereby and no valid tax deed can issue.” Modern Heat and Power Co. v. Bishop Steamotor Corp., 239 Iowa 1267, 1276, 34 N.W.2d 581, 586. See also Galleger v. Duhigg, 218 Iowa 521, 525-527, 255 N.W. 867.
In the instant case, the purported affidavit filed by the Board in attempted compliance with section 447.12 was made by one Clarence D. Russell. But there is no showing it was made before any person authorized to take or administer oaths, or, for that matter, before anyone. It is signed by Russell, and below his signature appear the words “Notary Public in and for Keokuk County, Iowa.” But there is no jurat and no signature of any notary. An affidavit is a written statement under oath made of taken before an authorized officer. 2 C. J. S., Affidavits, section 1; 1 Am. Jur., Affidavits, section 2; Black’s Law Dictionary (2d Ed.) 46; 1 Words and Phrases (2d Ser.) 147; 1 Bouvier’s Law Dictionary (Rawle’s 3d Revision) 158. It has been held by some courts that the signature of the affiant is not essential to a valid affidavit if he has in fact been sworn by an authorized officer; but we know of no authority which holds the administering officer may be entirely dispensed with. So far as the record in this case shows, while the paper masquerading as an affidavit in purported compliance with section 447.12 was signed, there is no jurat or signature of anyone empowered to administer oaths. In fact there is no showing that any such officer administered an oath or in fact had anything whatever to do with the instrument which the Board’s agent signed. The paper amounted to no more than an unverified statement and was of course totally insufficient as a foundation for the issuance
IV. The intervenor-appellant suggests that more than five years have elapsed since the issuance of the tax deed. From this we assume it is attempting to take advantage of section 448.12, Code of Iowa, 1954, which in substantially identical form has been a part of our statutory law since the Revision of 1860. The material part is this: “No action for the recovery of real estate sold for the nonpayment of taxes shall be brought after five years from the execution and recording of the treasurer’s deed * * * The evidence before us shows that James Marion Gilbert and his widow and heirs have been in possession of the real estate in question at all times since 1920.
We said in Barrett v. Love, 48 Iowa 103, 106: “Nothing is said as to possession, but the statutory bar seems to be complete at the expiration of the five years. If, after the expiration of that period, either the purchaser or the owner is compelled to resort to an action for the purpose of vindicating his title or possession, the bar of the statute operates on and is decisive that the action cannot be maintained. No distinction is made between the purchaser and owner; both are alike subject to the provisions of the statute.” (Italics supplied.)
In referring to the same statute, then section 7295, Code of Iowa, 1924, this court later said: “This statute operates to bar an action by the holder of the tax title on the expiration of five years from the recording of the treasurer’s deed.” Wallis v. Clinkenbeard, 214 Iowa 343, 348, 242 N.W. 86, 88. See also Brown v. Painter, 38 Iowa 456, and other cases cited in Wallis v. Clinkenbeard, supra.
It thus appears the statute is a two-edged sword, operating in the ease at bar to decapitate any claim of the appellant. The Board had never had possession, and after the expiration of five years from the date of its tax deed, April 25, 1939, its action to vindicate its title was barred by the statute above-quoted.
The judgment of the trial court upon Count I of the intervenor-appellant’s application is fully sustained by the reasoning and authorities of Divisions II, III and IV above. For this