192 Iowa 982 | Iowa | 1921
The action was originally brought by Lyman as guardian of his minor children, and it was alleged that, as such guardian, he was the owner of Lot 9, and the south 36 feet of Lot 8, in a certain subdivision in Nevada, Iowa. During the trial, the court, on motion of defendants, ordered that T. J. Lyman, in his individual capacity, be made a party plaintiff, so that the rights of title as between defendants and Lyman, guardian, and Lyman individually, might be determined. The pleadings on file were ordered to be applicable to Lyman as an individual. The property was sold at treasurer’s tax sale, December 6, 1915, for the 1913 tax, amounting to about $21. On February 5, 1919, the county treasurer issued a tax deed to defendant Walker. Subsequently thereto, it was discovered that the treasurer had made a mistake in the recitals in said deed, and a second deed, with correct recitals, was issued to Walker by the treasurer, April 28, 1919. As we understand it, this is the deed upon which defendant relies.
If the first deed was regular and valid, the treasurer would have no authority to execute another deed; otherwise if the first
“After two years and nine months from the date of sale, the holder of the certificate of purchase may cause to be served upon the person in possession of such real estate, and also upon the person in whose name the same is taxed, in the manner provided for the service of original notices, a notice * * * Service shall be complete only after an affidavit has been filed with the treasurer, showing the making of the service, the manner thereof, the time when and place where made, * * * and said record or affidavit shall be presumptive evidence of the completed service of said notice.”
Appellant contends that, because the return of the notice shows service on November 2d, when in fact it was not served until November 3d, this does not comply with the statute, because there has never been any proof of service filed, truthfully showing the actual time when the service was made; and that, therefore,, the defendant has failed to complete the service as provided by the statute; and that, until such service, is complete, the deed could not be legally issued. The further contention is that, if this be true, then the plaintiff’s payment of the amount of the tax, interest, and penalty, up to March 1, 1919, was a good payment, and constitutes a full satisfaction of all of plaintiff’s obligations to redeem his property.
Plaintiff alleges further that, about January 5, 1919, and before the treasurer’s corrected tax deed of April 28, 1919, was executed, he paid to the county auditor $245, with directions that this money be used to redeem plaintiff’s property that had
“The above amount, $239.99, left by Thomas Lyman as a tender to W. A. Walker, for payment of redemption fees.”
The auditor admits that he still holds the money.
The defendant Walker, answering first in general denial, then denies that Lyman as guardian is the owner of the property; admits that he holds 'tax deed and the correction deed; and alleges that he purchased the property at tax sale in good faith, and that, subsequently thereto,.and prior to the issuance of the tax deed, he paid taxes on said premises as follows: May 23, 1917, special assessments in the amount of $28.66, and $48.20. He further alleges that, subsequent to the tax deed, he paid taxes as follows: On February 13, 1919, to redeem tax certificate No. 2449, $68.16, and to redeem tax certificate No. 2448, $46.61; and that, on March 31, 1919, he paid taxes on the premises in the form of special and general taxes, $111.42; that all said taxes were paid in good faith, and to perfect his title. By amendment, he alleges that, since the filing of his answer, he has paid the following taxes against said premises: September 27, 1919, regular taxes, $24.83; March 29, 1920, regular taxes, $17.09; March 29, 1920, special taxes, $24.20; March 29, 1920,
The plaintiff’s evidence is without any substantial dispute in the testimony. It seems necessary to set out some of his testimony. As will appear from the testimony, the business by the different ones having to do with this matter was very loosely done. Plaintiff is a man working around at different jobs, shoveling coal, etc. It appears that he owned quite a number of separate pieces of property which were sold at tax sale. The sales were either made at different times, or the time for redemption expired at different times. It was plaintiff’s intention to redeem all of his properties, and he did redeem several pieces, — perhaps all but the one in question. He intended to redeem that. The value of the property in controversy does not appear definitely; but it is shown that, after defendant Walker secured his tax deed to it, he told plaintiff he would take $1,800 for it, and deed it back to him, and that he would let him have it for less than he would anyone else. We assume, then, that the property which sold in the first place for about $21 was worth
Another batch of similar notices was served on plaintiff, November 22, 1918. Witness tells where they were served, and so on. Plaintiff testifies that the return on the back of the notice, November 2d, does not show the real facts. Lough, as a witness, testifies that he met plaintiff on the street Saturday, at the place plaintiff states; that he told plaintiff he had some redemption notices, and that he was busy, and that, if plaintiff could come to the barn that evening, witness would give him the notices. Plaintiff said he would. Witness didn’t go back in time, and plaintiff was there according to agreement. Lough’s brother told him that plaintiff had been there. Lough did not see plaintiff until the next morning. He came to the office, and that was Sunday morning. Lough gave him the notices. He told plaintiff that he was sorry he couldn’t be there the night before. He gave plaintiff the notices, and said he would make
“So that is what I did. So the notices I had to serve on him that day were served on Sunday, and I suppose that is true of Exhibit J [the notice in this suit]. ’ ’
Witness says he does not specifically remember this particular notice as having been served this day, but plaintiff’s evidence shows that it was, and the other circumstances in the case so show; because concededly the other batch of notices was served on November 22d.
Defendant’s first tax deed to this property was executed February 5, 1919, which would leave only 74 or 75 days after November 22d. Defendant does -not claim that the deed was executed before 90 days had expired for redemption. Between November 3d and February 5th, there are about 90 days, or a little more.
No other witnesses testify on the subject of the date of the service. It is true, there is some evidence in the record, which will be referred to later, that all the notices were served — or the returns so show — on November 30, 1918. Concededly, there is a presumption in favor of the return of the officer. Generally, this is a strong presumption, but it is not conclusive.
Plaintiff further testifies, and the auditor’s receipt, Exhibit
“It is dated the 30th of November, the same as the rest of them, and I guess Walker must have held them all to return them at one time. Well, the return is completed the 30th of November — the 30th of November, the same as the rest of them.”
He says that the auditor told him that, being the 30th of November, as shown on the return, it wouldn’t make any difference where the money w.as applied; so he just wrote out the batch of receipts which plaintiff produced. Witness says he relied on the auditor’s statements as to when the tax was due, at this time, — relied on his statement; that, notwithstanding, the auditor took the money and put it on property other than that in controversy. Witness says that he understood from the conversation with the auditor that he had three months from that time; that plaintiff counted up, and said, “This is November 30th, and February has but 28 days;” and that he asked the auditor when they would mature. The auditor told him that he guessed it would be the second of March. Plaintiff further testifies that Exhibit I is for the payment of money that
Tbe auditor’s testimony is, in many respects, similar to that of plaintiff. He testifies that Lyman brought money to him, and that be wanted to redeem the properties that became due first. He does not remember that be told plaintiff they were all due at tbe same time; couldn’t state tbe exact dates or conversations, or what was done on each of these occasions. It was probably tbe fore part of tbe year 1919. Some time previous to that, be came in, at one time, and tendered witness a bunch of money, bills, cheeks, etc., and told witness to redeem as far as it went. Witness started down tbe .line at tbe first description, and says be “bad a dickens of a time making tbe money fit, on account of tbe variations, interest, etc.” Plaintiff did not specifically call bis attention to tbe property in controversy. He does not know that be said or did anything to deceive plaintiff as to tbe matter of bis redemption. Plaintiff brought money with which to redeem properties that bad been sold for taxes. Each time he brought in money and delivered it to -witness; delivered it for tbe purpose of redeeming property sold for taxes, to prevent tbe execution of a deed. . ■
“I intended to apply it in such a way that it would prevent this property from being conveyed by deed. I understood that tbe right of redemption expired at different times on different property. Each time that be paid me, I took tbe precaution to look up tbe different times that these rights of redemption expired, so as to apply the money on tbe property that expired on tbe earliest period. It was my intention, and I understood also it was plaintiff’s intention, to pay this money in so as to prevent tbe right of redemption expiring. * * * He told me which property to apply it on. Lyman was in tbe office to pay money probably twice, — I could not say bow many times. Then be was in once to pay when be left tbe money for Mr. Walker. I do not know whether, at any time when plaintiff was there, that be bad money enough to complete redemption of all tbe property that was subject to redemption. I can’t answer whether plaintiff, at any time prior to tbe execution oi
The county treasurer testified as to the execution of the first deed, of February 5th, and the other of April 28th; that the second deed was to correct an error in the recital with reference to the sheriff’s return. It appeared in the first deed that the affidavit was filed by another. There was a mistake in the first, and the second deed was issued to correct the mistake. He does not recall plaintiff’s coming to his office for the purpose of seeing the return of service of the 90-day period of redemption, — does not mean to say that such a circumstance did not happen; all he means is that he does not remember it.
Defendant Walker testifies to matters, some of which are not in dispute. Says_he made the affidavit, and made the sheriff’s return on the notice a part of his affidavit; did not direct Lough to serve the notices on Sunday. Testifies to paying taxes subsequent to the purchase at tax sale, and the amounts, down to the trial; that there were other taxes besides the regular taxes on this property, — four special assessments against it, part sidewalk and part paving; that he took them up to protect his original tax certificate. Testifies to receiving the deeds, to the conversation with the auditor about plaintiff’s having left money, and to a conversation with plaintiff, who told him that he had been down to redeem, and that the auditor had informed him that Walker had a deed. Plaintiff wanted to know if witness would let him redeem, and he said that he had no right to, because he already had a deed, and that all that could be done would be a conveyance back. Plaintiff asked how much, and witness told him $1,800. He says that the amount tendered the auditor was short of the amount required, but later says he had never figured up the amount; would suggest by making a wild guess. Thinks he did figure it at the time the tender was made. Did not tell plaintiff that was his reason for not accepting it,— that was not his reason for refusing to accept it; he already had a deed entitled to it, and couldn’t let plaintiff redeem, as
In rebuttal, Lyman says that, when he paid the $239.99, that was the amount that the auditor told him was due. The auditor gave him the figures. That amount was to cover all of the taxes, all of the amount that was due on this property in controversy; He figured it out from the books in the- county auditor’s office as the amount which was due on this property at that time.
“He said it was, and he made me out this list, and these figures corresponding with the receipts.”
This is the substance of the testimony, and, as before stated, there is but little dispute.
“A distinction is made between judicial acts and those of a ministerial character, and it seems to be generally held that, in the absence of a statute, ministerial acts performed on Sunday are valid.”
Instances are there given of things that may be done on Sunday, as ministerial acts; but the test cites Shaw v. Williams, 87 Ind. 158, as holding that the publication of a sheriff’s notice of sale in a Sunday newspaper is invalid.
25 Ruling Case Law 1447 states the rule that, in some jurisdictions in this country, the service of process on a Sunday or holiday is expressly forbidden, and service in violation of the prohibition is invalid, as is also a return of process; that, independent of such statutes, there is a diversity of opinion as to the Sunday phase of the subject, and according to some cases, the view is that the issuance or service of process is a ministerial act, and not within the prohibition of the law, while in others, the contrary view is taken, not only as to when the act is done
The defendant testifies to a number of payments of taxes made by him; but the interest has not been computed, and there have doubtless been payments made since the case was tried in the district court, which are not in the record. Under such circumstances, the district court is authorized and directed to hear evidence and determine the amount due defendant Walker from plaintiff.
For the reasons before stated, the decree of the district court is reversed and remanded for a decree in harmony with this opinion. — Reversed and remanded.
