67 Iowa 22 | Iowa | 1885
I. The appellee presents amotion to dismiss the appeal upon the alleged ground that at the time the appeal was taken the defendant, Scott E. Smith, liad no interest in the subject of the action, he having by his quit-claim deed released all the interest he had in the land to E. W. Smith. The motion is supported by affidavits to the effect that such a deed is on record in the recorder’s office, and that it purports to have been signed and acknowledged by Scott E. Smith and Hester A. Smith, his wife, before this action was commenced. The defendant, Scott E. Smith, died after the appeal was taken, and the proper substitution of parties was made in this court. The parties defendant resist the motion to dismiss by the affidavit of Hester A. Smith, in which she denies that she or her husband ever executed any such deed. The fact of the transfer of the land having been denied in this emphatic manner ■ precludes us from entertaining the motion. It raises an issue of fact which, if determined in plaintiff’s favor, defeats the defendant’s right of appeal, and this fact ought not to be determined upon conflicting affidavits.
II. There was an agreed statement of the facts in this case, which shows that the land in question was duly and legally sold to E. W. Smith by the county treasurer on the first day of November, 1875, for the delinquent taxes of 1874, and that E. W. Smith afterwards assigned the tax-sale certificate to the defendant, Scott E. Smith, who attempted to give the notice of expiration of redemption required by law. The notice and the proof thereof were so defective that the treasurer was not authorized to execute a deed to Scott E. Smith. Rut a tax deed was made, executed and delivered on
In- the case at bar the defendant does not seek to recover taxes. He has a valid tax-sale certificate upon which he had the right, at the commencement of this suit, to give the proper notice of expiration of redemption, and take his deed in ninety days after the service of the notice. The plaintiff had the right to redeem from the sale, and to do so he was bound to pay the taxes and penalties provided by law, regardless of the statute of limitations. See Harber v. Sexton, 66 Iowa, 211.
The decree of the district court fixing the amount to be paid in redemption is reversed, and the cause is remanded for an account of the taxes and penalties to be taken in accord with this opinion.
Reversed.