Hurley v. Street

29 Iowa 429 | Iowa | 1870

Cole, Ch. J.

sale : limitation. I. We have heretofore decided that the five years limitation of the statute (Rev. § 790), does not begin to run until the execution and recording of the tax deed. Eldridge v. Kuehl, 27 Iowa, 160. And hence the ninth count of the answer did not set up facts constituting a bar to the action under the statute, and the demurrer thereto should have been sustained. But the plaintiff did not stand upon his demurrer, and suffer judgment against him. The cause was fully tried upon its merits, without reference to the statute of limitation, and no prejudice whatever has resulted to plaintiff by reason of the erroneous ruling upon that point of the demurrer. It does not, therefore, constitute any ground for a reversal.

The same is true as to the first point in the demurrer, to wit: that the first tax deed to Pusey was void on its face, and conveyed no title. The deed is the same as that held void by this court in Boardman v. Bourne, 20 Iowa, 134. But it was held in Finley v. Brown, 22 id. 538, that it was not a prejudicial error to allow such deed to be read in evidence.

a._power of Sk second deed' II. The same point as to the power of the treasurer to make a second and corrected deed, where he had made the first and void one, is made by the demurrer, and also by objection to its introduction as evidence in the case. The point has been ruled at the present term, against the objection made by plaintiff, in the case of McCready v. Sexton, ante, 356, holding that the treasurer has the power. In this case the proof by the record of tax sale, and by the testimony of the treasurer, is clear and abundant that the sale of the lot in controversy was separate from the other and as recited in the second deed. The correction was made so as to accord with the record and facts, and affords a good illustration of the justness and wisdom of the rule held in the case cited.

8-_adjourn-ments of sale. III. It was further objected both by the demurrer and upon offering the deeds in evidence that the sale of the lots in controversy was at a time not authorjze(j by law. The objections being grounded upon the fact that the sale took, place in March, 1862, upon an advertisement made for a sale in December, 1860; thus being carried by adjournment over the time fixed by statute for the succeeding annual sale. A bare reading of the statute and its amendments will show the error of the objector. Revision, section 764, provides for the advertisement or notice of sale for taxes. A part of said section as originally enacted, is as follows : “It is required that such advertisement shall state the time and place of sale and contain the description of the several parcels of real estate to be sold, as the same are recorded on the tax list, the amount of taxes for each year, and amount of interest and costs against such tract or the names of owners, when known, or persons, if any, to whom taxed.” * * * Section 773 provides for adjournment of the sale “from time to time not to exceed two months at a time until the next regular annual sale, or until the taxes shall have been paid.” Afterwards, at the extra session of the Legislature in 1861 (See Laws Ex. Ses. 1861, ch. 24, §4. p. 32) the above words in italics were repealed and the following enacted in their stead, to-wit: “For the delinquent taxes of the preceding year and such real property as has not been advertised for the taxes of previous years, and on which the taxes remain due and delinquent, and the amount of taxes.” Taking all these provisions together, it is reasonably clear that real property is to be advertised but once and that the sale of such real estate once advertised may be made at any time thereafter, pursuant to adjournments regularly made.

i. action of ery. ‘ IV. It is also objected that the quit-claim deed made by Pusey to defendant conveyed no title, since Pusey only held the title under the first tax deed, which was void and conveyed no title to him; and the title acquired by Pusey under the second tax deed did not enure to this defendant, who is therefore not the owner of the property. This might all be conceded and yet the plaintiff is not thereby aided in his action, since he must recover upon the strength of his own title, which, as we have seen, was divested by the conveyance to Pusey, and not on the weakness of the defendants.

Affirmed.

Weight, J. • Dissenting as to the power of the treasurer to make the second deed.