76 Iowa 406 | Iowa | 1888
— It appears from the averments of the petition that certain . real estate was sold for city taxes in the year 1876, and that one Bishop was the tax-sale purchaser. A short time after the sale Bishop assigned the certificate of sale to the plaintiff. The assignment was placed upon record in the office of the city treasurer, as required by an ordinance of the city. The real estate was redeemed from the sale on the seventh day of May, 1877, by the payment of the sum .of $416 to one Brant, who was then city auditor. Brant paid over the ‘ money to one Riley, who was his successor in office, and Riley paid ,the money to Richter, the.defendant, on May 1, 1887, and he received the same by virtue of his office. The plaintiff demanded the money of Richter on the sixth day of May, 1887, and afterwards, and on the same day,, this action was commenced, upon his official bond, to recover the same. The city of Dubuque was organized and has always acted under a special charter, and it was stipulated by the parties hereto that its ordinances, so far as they pertain to tax sales, and redemption therefrom, are substantially the same as sections 887-891 of the Code. The demurrer was upon the ground of the statute of limitations. No question is made as to the plaintiff being the assignee of the original tax-sale purchaser. It is provided in one of the ordinances of the city that tax-sale redemption money shall be held by the auditor subject to the order of the purchaser or his assignee. No question is made that the plaintiff was at one time entitled to the money. But it is contended by counsel for
Counsel for the respective parties have made elaborate arguments upon the question of whether the receipt and custody of the money was in the nature of an express trust. Upon the part of plaintiff it is contended that the relation of the parties was that of trustee and cestui que trust, and that the statute of limitations did not commence to run until the trust was denied and repudiated by the trustee by a refusal to pay the money on demand. Counsel for defendant denies that it was a trust of the character claimed by the plaintiff, and claims that, if a demand was necessary, it should have been made and suit brought within the time fixed by statute after the plaintiff was entitled to the money. It is conceded that as each auditor was elected and qualified he received the money in controversy from his predecessor, and that his official bond bound him to pay the same to the plaintiff if the right of the plaintiff thereto has not been barred by the statute. This is not an obligation against the city. The money has not been covered into the city treasury. The action is hot against the city. It is money on deposit, so to speak, with the city auditor, payable on the order of the plaintiff. The defendant, while he admits the receipt of the money from his predecessor, insists that the plaintiff has no right to it, because he failed for more than three years to commence an action against the defendant’s predecessor in office. The substance of his claim is not that the money .belongs to him or to the city, but that' it is
In Beecher v. Clay County, 52 Iowa, 140, the plaintiff, by mandamus, sought to compel the board of supervisors to refund certain illegal taxes which the plaintiff had paid into the county treasury. It was held (following the case of Callanan v. Madison County, 45 Iowa, 561) that the cause of action accrued when the taxes were paid, and that the plaintiff could not delay the operation of the statute of limitations by neglecting to demand of the board an order for the refunding of the taxes. That was also an action against the county. The law required the board of supervisors to make- an order directing the treasurer to refund the money. Code, sec. 870. It was a claim against the county, which required the action of the board of supervisors the same as any other claim, and no suit could be maintained until the claim was presented to the board, as in Baker v. Johnson County, 33 Iowa, 151, and other cases, which hold that a party cannot, by his own neglect or laches, arrest the operation of the statute of limitations. The same principle is to be found in the case of Lower v. Miller, 66 Iowa, 408. That was an action upon the official bond of a sheriff for failing to pay over to the plaintiff certain money which was deposited with him, as sheriff, in certain proceedings by which land was condemned for a railroad right of way. It was held that the action was barred by the statute of limitations because it was not brought within three years after the plaintiff was entitled to the money. ' The case was not disposed of upon a demurrer. There was a trial on the merits, and it appeared that the sheriff was elected his own successor, and the action was brought upon the last official bond. The action was a personal action against the sheriff. • It was not brought within 'three years from the time it accrued against him. The facts are altogether different in the case at bar. The defendant Richter received this money, and receipted for it, but a short time before the action was commenced. He received it as the money of the plaintiff, and- his failure
We think the demurrer to the petition should have been overruled.
Reversed.