Lawrence & Burd v. Hornick

81 Iowa 193 | Iowa | 1890

Granger, J.

The plaintiff is the holder of the patent title. In January, 1877, N. A. McFaul purchased the lot in controversy for the taxes of 1870, ’71, ’72, ’73, ’74 and ’75, and thereafter assigned the certificate of purchase to E. L. Kirk, who received a treasurer’s deed therefor, June 28, 1880, and on the same day the deed was duly recorded. On the twenty-first of April, 1886, E. L. Kirk conveyed the lot to the defendant, John Hornick, by special warranty deed. The appellant assails the validity of the tax title on three grounds, which will be noticed.

, , ' jinquenttaxes not earned forward: I. The first ground of complaint is that the delinquent taxes for prior years, and for which the lot was sold, were not carried forward to the tax lists of other years as required by law. , A _ , This suit was commenced, December 22, 1887 — some seven years after the recording of the tax deed, and the statute of limitations is urged as against appellant’s claim to avoid the deed because of such fact. Appellant, however, insists that the statute of limitations is unavailable for the reason that the sale is void because of the failure to carry forward the taxes. The controversy then is, whether the sale is only voidable or absolutely void because of such failure. That it is, at least, voidable is not questioned, and, if voidable only, then the action to set it aside must be brought within the five years from the recording of the deed. If void, then there is no basis for the action of the statute of limitations, and the action is not barred. There are some cases in which the terms “void” and “invalid” have been used where the facts and relief sought are the same as in this case, and the reliance of appellant is placed thereon. See Buckley v. Early, 72 Iowa, 289; Hooper v. Sac Co., 72 Iowa, 280; Bank v. Early, 72 Iowa, 273; Gardner v. Early, 69 Iowa, 42, and other cases cited therein. The case of Griffin v. Bruce, 73 Iowa, 126, presents and determines the precise question, whether the failure to carry forward the taxes renders the sale void or voidable, and holds to the latter view, and that such ‘ ‘ irregularity ” “ does not operate to arrest the running of the statute.” Are the cases in conflict? We say they are not. While the word void is of broader technical significance, it is often used in the sense of voidable. An instance is to be found in Gardner v. Early, supra, where a deed, because of a failure to carry forward the tax, is said to be “invalid” and “ void,” but the language immediately following, and other language of the opinion, clearly indicates that nothing more was intended than that it was a voidable instrument. Instances of such use might be multiplied. Griffin v. Bruce, supra, is clearly decisive of this point in the case.

2 . notice ' known. II. Appellant urges that no sufficient notice of the expiration of redemption was served as provided by Code, section 894. A notice, styled a “blanket notice,” was served by publication addressed to “unknown owners” containing a large number of descriptions, but none was served on or addressed to a particular person. The law requires this notice to be served on the “person in whose name the land is taxed.” If taxed to unknown owner such notice is not required. Irwin v. Burdick, 79 Iowa, 69, and cases there cited. The premises in question for the year 1869 were taxed to L. Lambert, but for the years, for the taxes of which they were sold, and thereafter, no owner of the land was indicated by the record; the column for the name of the owner being blank, and, for such years it was not taxed to any person, and there was no one on whom such notice could be served. The record makes no question as to the tax of 1869. The land was not taxed to Lambert for the years in question, and, if not, the law requires no service of notice on him. If no notice was required the mere fact that the blanket notice was insufficient, as claimed, would not invalidate the sale.

_ effect; urei': III. N. A. McFaul was the ostensible purchaser of the lot at the tax sale, and assigned the certificate to E. L. Kirk. E. L. Kirk is a son of E. R. w^°) the time of the sale, was a deputy treasurer of Woodbury county, where the sale took place; and appellant claims that it appears from the record that McFaul was not the purchaser, but that he acted in bidding in the lot for E. R. Kirk, and in such manner as to render the sale void under the provision of the statute prohibiting treasurers from being concerned directly or indirectly in the purchase 'of real property sold for taxes. Code, sec. 885. The section provides that “all such sales shall be void.” This court also held that such sale was equally void when the prohibited act was done by the deputy treasurer. Ellis v. Peck, 45 Iowa, 112. But here, again, the word void is held to mean voidable, and, hence, defendant’s plea of the bar of the statute avails him as against this claim of fraud, if the fact of the fraud should be conceded. Thomas v. Stickles, 32 Iowa, 71; Douglas v. Tullock, 34 Iowa, 262; Pierce v. Weare, 41 Iowa, 378 ; Bullis v. Marsh, 56 Iowa, 747; Griffin v. Bruce, 73 Iowa, 126.

The judgment of the district court must be AFFIRMED.