62 Iowa 329 | Iowa | 1883
In 1876, the assignor of tbe defendant, Smith, purchased the real estate in controversy at a delinquent tax sale. In 1880, the defendant procured the treasurer to convey the premises to him, upon his surrendering the certificate of purchase, which was marked “canceled” by the treasurer, and filed in his office. The land when sold for taxes belonged 'to one McBride. In April, 1882, the plaintiff purchased the land of McBride, and the same was conveyed to him. When he purchased the land, the plaintiff had knowledge that it had been “sold at tax sale, and that a tax deed was standing against it.” About the time this action was commenced, the defendant discovered that the tax deed was void, because the notice required by law, and upon which the validity of the tax deed depended, had not been served upon the proper person. The defendant was taking-steps to have the notice properly served, when the plaintiff filed an amended petition in equity, asking an injunction restraining the defendant from making completed service of said notice, on the ground that a tax deed had been issued and the certificate of purchase surrendered and canceled, as above stated. The injunction was granted. But for the injunction, the defendant, as appears from an agreed statement of facts, would have filed the required affidavits and made completed service of the notice on the third day of July, 1882, and would have been entitled to a deed in ninety days thereafter, or on the second day of October. The final
The main controversy arises on the defendant’s appeal. The original theory of the plaintiff, and upon which he obtained the injunction, was that, when the defendant surrendered the tax certificate and .the same was marked canceled by the treasurer, and the premises conveyed to the defendant, then the certificate ceased to be evidence of the matters recited therein; that it had accomplished its purpose, and ceased to be a valid instrument upon which any right could be based. But a valid tax deed cannot be executed until ninety days after the completed service of the required notice. Code, § 894. The deed, therefore, was void, because prematurely issued. The deed being void, the surrender and cancellation of the certificate were also void. The certificate, therefore, had the same force and effect as if it had never been surrendered. The defendant thereunder, and by virtue of the purchase at tax sale, was entitled to a deed upon giving the requisite notice. The plaintiff had the right to redeem at any time prior to the time the defendant was entitled to a deed, and not afterward. Pearson v. Robinson, 44 Iowa, 413; Schofield v. McDowell, 47 Id., 129.
But for the injunction, the defendant would have been entitled to a deed on the second day of October, 1882. The plaintiff- did not offer to redeem until the sixth day of Octo
Reversed.