Martin v. Cole

Mar 19, 1874

Reporters:
Before:: Beck

Lead Opinion

Beck, J.

— -The relief claimed in the three cases is the same, namely, the setting aside of certain tax deeds upon different lands, and is claimed in each case upon nearly the same state of facts, which, it is insisted, avoids the title of the defendant to the property in question. It is enough to say of the pleadings that they put in issue the sufficiency of the proceedings and conveyances un<Jer which defendant claims title. Our present duty is, to gather from the abstract before us* the facts upon which the determination of the case depends.

. The respective plaintiffs derive title to the lands claimed by each, by regular chain of conveyances from the grantees of the government. Defendant’s title is based upon a sale of the lands for the taxes .of 1860, had in 1862. The validity of this *143tax title is involved in the questions before us. Our first care is to determine the facts upon which these questions depend for solution, and then apply the law thereto:

I. The lands were subject to taxation for the year 1859, and were for that year listed arid assessed (appraised) in eighty acre tracts to unknown owners. Upon this assessment the lists were transcribed into the tax books of 1860 for taxation. This was sufficient for that year. See Acts 7th General Assembly, Chap. 152, § 30, Eev. § 720. We do not understand that the sufficiency of the assessment is denied by plaintiffs

i taxation Sy :reví-a denee. II.’ That there was a levy of the taxes for the year 1860 is claimed by plaintiffs. Upon this question we are not permitted to entertain a doubt, for the fact of a levy, at the proper time, by the county board of equalization entrusted by ^he bw *bat appears from the records kept py tpe coimty judge, one of the officers of the board. Acts 7th General Assembly, Chap. 152, §§ 31 and 38, Eev. §§ 808 and 323, and context. But plaintiffs assail this record and attempt to impeach it, as having been made without authority and surreptitiously. In this they fail.t The order ’ of levy has affixed to it the names of the officers constituting the board of equalization. It is shown that their names are not in the hand writing of two of them, the surveyor and treasurer. But this fact may be admitted and yet the record is not impeached. As a record it would be good without the signatures. An entry of the act of the board upon the record sufficiently showing the levy is all that was required. The record in that case would be evidence of the levy. It is probable that the order was made upon a separate paper signed by the officers, and then copied into the record. Under this state of facts the record would-be sufficient without the production of the paper bearing the signatures, for it would be in’ fact the record of the action of the board. An attempt is made to show by one of the ‘officers that in fact no levy was made. Without questioning ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the competency of the evidence, it is sufficient to remark that the attempt failed. The most that can be said of this evidence is, that the officer referred to did not remember making the levy. .

*144III. A warrant complying with, the requirements of the law was duly issued at the proper time, and attached to the tax list. No question is made as to its sufficiency.

2. tax saijs : combination, IV. The next inquiry relates to the sale. Plaintiffs insist that there was, in truth, no sale of the lands or that if it be found a sale was had it is.fraudulent and void, on account of combination among the bidders, with the knowledge of the officers conducting it. Upon the first branch of plaintiffs’ position the evidence to our minds seems clear and satisfactory. In the first place there is a record of the sale. Rut without considering-here the character of the record as evidence, our minds are brought to the conclusion upon other proof, offered by the parties, that there was in fact a sale; that the lands were offered in the usual and proper manner and struck off to bidders, or rather to the bidder who became the purchaser. The great preponderance of the parol evidence is to this effect. One witness testifies that there was no sale, that parties desiring to purchase, himself among the number, gave to the treasurer a list of lands they desired to secure, and they were entered upon the list as sold to them. But his‘evidence is by no means explicit as to the lands in’ question; he speaks more particularly of the lands bought by himself. Besides he was not present during all the time the sale was in progress. Other witnesses’ testify positively, directly, and plainly, upon the subject and assert that there was a sale conducted in the lawful manner.

The evidence, we think, also fails to establish the fraudulent combination charged by plaintiffs. The same witness just referred to testifies to something of that character. He states that the lands purchased by him were subject to such an arrangement, but he fails to show that there was any combination, as to the property in dispute. In truth, however, his evidence upon the point is not clear, nor-is it direct. On the other hand the officers conducting the sale and others, directly deny the existence of such combination, and the agent of the absent purchaser of all the lands in question, who was all the time present, asserts that he was a party to no such a combination and that none existed. We find therefore, from the evi-’ *145deuce that there was in fact a sale, and‘that the charges of fraud and combination are not sustained.

There is no claim that the taxes were paid, or the lands redeemed from the sale.

„ , . what consta- or parcel. Y. Having found the lands subject to taxation, that they were legally listed and assessed, that the taxes were levied thereon, that there ‘was a warrant for the sale of the lands, that there was a lawful sale and that the taxes were not paid and the lands were not redeemed from the sale, the essential requirements to support a tax title, we come to the next step in the proceedings necessary to divest the owner of his property, that is, the deed. The proceedings and conditions just enumerated are essential and jurisdictional in their character, and without all of them the tax title will be void. McCready v. Sexton & Son, 29 Iowa, 356.

May 30, 1865, five deeds were executed’ to defendant, each one conveying a section en masse.

June 30, 1866, separate deeds were executed for each “forty” in sections 26 and 35 and for each “quarter” in sections 27 and‘34, and September 26,1866, for each “quarter” in section 36.

September 22, 1869, separate deeds were issued for each “forty” of sections 27, 34 and 36.

December 4, 1869, separate deeds were issued for each, “eighty” of all the sections.

The deeds executed after those first made were for the purpose of correcting or supplying supposed defects therein which consisted in the recital of the sale of the lands in sections and in conveying them in the same manner.

This court has uniformly held that a deed showing a sale for taxes of two or more tracts or parcels of land together is void, and will defeat the title based thereon. See Penn v. Clemans, 19 Iowa, 372; Boardman v. Bourne, 20 Iowa, 134; Byam v. Cook, 21 Iowa, 392; Furguson v. Heath, 21 Iowa, 438; Harper v. Sexton, 22 Iowa, 442; Ackley v. Sexton, 24 Iowa, 321; Ware v. Thompson, 29 Iowa, 67.

These are eases in which distinct tracts or parcels from two *146to fourteen were sold and conveyed together. The point settled by these decisions is, that deeds showing such a state of ,facts are void. In them will be found no rules to enable us to determine what division of land is to be considered a tract or parcel, and the point is not made or determined.

In Corbin v. De Wolf, 25 Iowa, 125, followed by Bulkley v. Callanan, 32 Iowa, 461, it is held that the sale of and deed for two government subdivisions, being assessed as one tract to a known owner, are authorized by law. The ground of this decision is that the two sub-divisions, “forties,55 are but moieties of another sub-division, an “eighty,55 which is itself a tract or parcel within the meaning of the law and the decisions of this court. The terms “tract55 and “parcel55 may quite as properly be applied to a quarter section, a half section, or a section, as to a “forty55 or “eighty.55 Each of them is a government sub-division and they are commonly thus designated in the language of the courts, the government land officers and the people.

When lands are in different sections or quarters, or are not contiguous and cannot be described as one tract by one description, they do not in fact constitute one tract and cannot so be designated. If two “forties55 properly forming an “eighty55may be sold together as one tract, no reason can be given why four “forties55 which together constitute a quarter section may-not in the same way be disposed of as one tract. The same course of argument ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍requires us to concede that four quarters, eight “eighties,55 ór sixteen “forties,55 which are but fractions constituting a section, may be considered as one tract or parcel and so sold. There is no escape from this conclusion. In truth, the section is the unit of our system for the division of lands. Parcels of less quantity into which they are sub-divided are but fractions of the sections. These, while they constitute townships, are never spoken of as fractions thereof. We conclude, therefore, that the term parcel or tract is properly applied to a section. •

Prior to Chapter 25, Acts Extra Session 8th General Assembly, lands were required to be advertised in tracts of the same description in which they were found upon the tax list, *147but that Act, § 4, provides that “when the name of the ‘owner of any delinquent lands or town lots is unknown,” the advertisement of sale “shall embrace the largest quantity practicable in each description.” This provision - evidently means that when the owner is unknown, a section shall not be advertised in sixteen descriptions of “forties,” nor in eight as “eighties,” nor in four quarters, but in one as a section. Rev. § 765, provides that the county treasurer shall “offer for sale, separately, each tract or parcel of real property advertised for sale.” The reference to the tract or parcel advertised unmistakably indicates that the sale shall be in such tracts or parcels as are found in the advertisement of sale; of this construction there can be no question. Thus far we have seen that a section is a tract or parcel and is properly designated in one description, and that it must be so advertised and sold. Section 781 directs the treasurer to “make out a deed for each lot or parcel of land sold.” It follows that if a section of land was properly advertised and sold as a “tract or parcel,” it. may be conveyed, .by the same description.

We find no escape from the foregoing conclusions. We confess that some of us have labored long, earnestly and • anxiously to establish the position that the sale of a section of land en masse is not authorized by law. The thought that laud in this wholesale manner may be sold for taxes is repugnant to our feelings, and against our views of right. We see, or suppose we see, doors opened wide by this law for oppression and unconscionable-practices. - With the law as it is we have nothing to do but to construe and interpret its language, and enforce its provisions. We would most gladly, were we able to do so, establish a different interpretation, and, remembering the remark of an eminent English judge, that courts should be astute, subtle, cunning, in the interpretation of the law to the end that justice may be attained, we have sought every avenue of escape from the conclusion announced, but have found all barred and secured by principle, precedent, and inexorable arguments. • ■

The jurisdictional matters being regular, and the deeds in conformity with the law, we find all the other questions settled *148by prior decisions of this court. They relate to the manner of the sale and other proceedings. Of the regularity of these the deed is conclusive evidence. McCready v. Sexton & Son, 29 Iowa, 356; Rima v. Cowan, 31 Iowa, 125. Whatever is found in the record upon these subjects need not be considered, as we are required to regard the deed as evidence, not to be contradicted,, of their sufficiency.

The deeds made subsequently to those first executed have no effect upon defendant’s title. If the first are sufficient the others cannot invalidate or confuse the title, or prejudice either party. McCready v. Sexton & Son, supra; Bulkley v. Callanan, supra; Gray v. Coan, 30 Iowa, 536.

Other questions, as the refusal of the referee to continue the cause upon application of defendant, are unimportant, and need not be considered.

The petition in each case will be dismissed. One third of the costs of printing abstracts, and additional abstracts filed by defendant, and of amended abstracts filed by plaintiffs, will be taxed against the plaintiffs; the‘defendant will pay two-. thirds of such costs, and judgment will be rendered accordingly. Plaintiffs will each pay equal portions of the one-third’ of these costs adj udged against them. All other costs will be paid by plaintiffs as they are taxed in each suit.

Reversed.

Rehearing

OPINION ON REHEARING.

Beck, J.

— An opinion was filed in three cases in the December Term, 1872, of this court, reversing the judgments rendered therein by the District Court. A petition for a ■rehearing was filed under the rules of the court and a re-argument permitted‘. This order was made on the grounds that counsel, in their petition for a rehearing, claim they were led into the belief, by expressions found in opinions rendered by this court in prior cases, that the main ‘point determined by us in bur opinion heretofore rendered in this case, namely, a sale of a section of land en masse for taxes and a tax deed, made under such sale, conveying the land by a like descrip*149tion may be valid, had been, by this court, determined otherwise; and that they understood counsel for appellant to admit this and to rely solely upon the tax deeds conveying the lands by descriptions and quantities less‘than .a section. For these reasons, they claim, the point stated did not receive proper consideration in their former arguments. In the re-argument this point has been fully discussed and counsel for both sides have had all the time required by them for the consideration of the question and for a full and free criticism of our former opinion. 1

Our conclusions heretofore announced have not been changed by the extended and able arguments submitted by appellee’s counsel, which have received the most patient and considerate attention from each member of the court. ■ On the contrary our confidence in their correctness has been strengthened, and we have become thoroughly satisfied that no way of escape therefrom can be found. Counsel, it seems to us, have adduced every argument and consideration against these conclusions which ability, ingenuity, zeal and- industry are capable of discovering. There remains, in our opinion, nothing more to be said on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the • subject. The question is one of no great compass, involving the construction of a statute and thereby the discovery of the the legislative will. As we have before had occasion to remark, that will when discovered, if within constitutional bounds, must be obeyed by this court although found in a revenue law and prescribing rules for the enforcement of -the collection of taxes and providing for the sale of lands for that purpose. We have yet to learn that any respectable legal authority holds, or any good citizen would demand, that this court may or should disregard a constitutional law of the state, on the ground that, thereunder, titles of lands may be divested by sales for delinquent laxes and that in its operation and effects, it is marked by severity toward those who refuse or fail to pay their taxes. It is the duty of the courts of the State to uphold and enforce all constitutional laws. Much of what has been said upon the re-argument of this case is directed to pointing out the hardships wrought by the law and the abuses that may spring therefrom. With *150these we have nothing to- do. Such considerations should be addressed to the legislative department of the government. The law has been in force for more than thirteen years and whatever changes have been made have added to rather than diminished the severity complained of; we must presujne that all this time it has not wanted legislative approval. This court’ has not hesitated to hold certain provisions found therein to be in conflict with the constitution and therefore void. On the other hand, so far as the statute has been found to harmonize with the constitution, it has been sustained and enforced. Law-abiding citizens of the State, however their interests may be affected by the statute in question, can expect and desire nothing more and nothing less.

I. “We will proceed to state briefly considerations which support the conclusion reached in our former-opinion. We will, however, do little but repeat and extend the- thoughts we have before expressed, and it may be- that we will not succeed in making them plainer.

This court has uniformly held that different tracts of land cannot be sold at a tax sale and conveyed by a tax deed en masse. Boardman v. Bourne, 20 Iowa, 136; Ware v. Thompson, 29 Iowa, 67, and cases following these decisions. These rulings are based upon the consideration that such sale and deeds are “ in direct violation of the express language of the statute.” In the case before us we are required to - apply this .rule, and in doing so, must inquire when and’ under what circumstances laud,’ consisting of a given quantity, a certain number of acres, as measured and marked out by the government surveys, is to be regarded, under the provisions of the statute, as one tract or parcel- Now let us notice briefly all .the provisions of -the statute upon this subject in order to determine what the law means when it requires, lands to be sold and deeded under tax sales in separate- parcels or tracts. We will first state the provisions of the Revision,‘and afterward the subsequent amendment. See. 731. The assessor shall “ list ” each person in his township, and “ assess ” all property, personal and real. Sec. 737. When the name of the owner of real estate is unknown, it is assessed “ without con*151necting therewith any name,” but tbe words “ owners unknown” are inscribed at the head of the page. Such real estate “ shall be listed as near as practicable in the order of the numbers thereof,” and no “ one description shall comprise more than * * tbe sixteenth part of a section or otlier smaller subdivision of the land according to the government surveys.” Sec. 745. The clerk of the county transcribes into the tax hook from the assessment books tbe descriptions of property; but when the owner is unknown no one description sliall contain more than one-sixteenth of a section or other, smallest subdivision of the land according to the government surveys. Sec.. 764. Notice of the sale of lands for taxes is to he given by advertisement in a.newspaper which shall contain “a description of the several parcels of real property to be sold as tbe same are recorded on tbe tax list.” Sec. 765. The county treasurer shall offer for sale, separately, each tract or parcel of real-property advertised for sale. Sec. 771. A copy of the advertisement with a certificate and proof of its due publication is to be filed“’in the office of the clerk. Sec. 772. The clerk is required to make a record of the sale, “ describing the several parcels of real property” sold “as they are described in the list or advertisement on file in his office. The same record is made by the treasurer. Sec. 777. A certificate is delivered to the purchaser, describing tbe property bought by him “ as the same was described in tbe record of sales.” Sec. 781. At the expiration of the time for redemption the treasurer shall make out a deed “ for each lot or parcel of land sold and remaining unredeemed.” . Sec. 782. Any number of parcels of land bought by one person, may be included in one deed.’

It cannot be doubted that- under these provisions lands were to be assessed, when the owners were unknown, in forty acre tracts, were to he so entered upon the tax lists and hooks and wez-e to be advertised, sold azzd deeded by szzclz descz-iptiozzs. The language is plain azzd is to tbe effect that they shall he sold, and deeds znade aecoz’ding to the descriptions in which ■ they are advertised for sale. Not one word is said as to the quantity of land to be sold and deeded as one tract, further than *152the parcels shall correspond with the advertised list. Upon this point there is no foundation for dispute. .

But section 764, is amended by Chap. 24, Acts extra session 8th General Assembly. Section 4 of that act provides that, “ In giving notice of the sale of lands ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or town lots for taxes, it shall be the duty of the treasurer, in cases when the name of the owner of any delinquent lands-or town lots is unknown, to embrace the largest quantity practicable in each description of such lands.” By section 5 the words occuring in See. 764, “as the same are recorded on the tax list,” quoted above, are stricken out. No change is made as to the other provisions above cited. The amended section simply took the place of the original provision. Now it is just as plain after this amendment as it was before, that the lands are to be sold and deeded by the descriptions set out in the advertisement. We discover no grounds for a difference of opinion here. Repeating what we said in our first opinion, that a section is called in common language, as well as in the language of the courts and the government land officers, a tract or parcel, and is the unit in the division of public lands, it is beyond question that it was the intention of the legislature to so regard it in the statute under consideration. It may be lawfully advertised, sold and deeded as one section when the owner is unknown. The case before us then, is not within the rule first announced in Penn v. Clemons, supra, and followed by the decisions cited in our first opinion.

II. Counsel assert and reiterate with a great deal of boldness, that a contrary rule has been announced by this court, and that we have held a sale of lands assessed to unknown owners, in tracts greater than forty acres is in violation of the law. Corbin v. Dewolf, 25 Iowa, 127, and Bulkley v. Collation, 32 Iowa, 464, are cited to support this position. The point was in neither of these cases and the language relied upon by counsel was used arguendo. ■ In the first case Rev. § 764, is cited as it stood before the amendment above stated, and the remarks in the opinion, which are claimed by counsel to support their statement, may have had proper support considering the law as it originally stood.

*153The language of the second case doubtless originated in the same way, the attention of the court in neither case having been called to the amendment above noticed. But be this as it may, the point was decided in neither case, the court holding in each, that land of known owners, assessed in tracts greater than forty acres, may be sold by such descriptions; nothing more was decided.

It has never been held by this court that an “eighty,” “a quarter,” or a half section, or section, as these tracts are marked out upon the government surveys and are each’ designated by a single description, may not be sold and deeded for taxes as a single tract or parcel. In Boardman v. Bourne, 20 Iowa, 135, of the deeds held void, two conveyed each two, and the third fourteen distinct tracts of land. In Furguson v. Heath, 21 Iowa, 438, the tax. deed was for two “forties.” Though adjacent, they were in different “quarters.” The lands in Byam v. Cook, Id. 392, were fourteen different and distinct parcels. In Harper v. Sexton, 22 Iowa, 442, many tracts of land were sold “in a lump.” In Ackley v. Sexton, 24 Iowa, 320, several distinct tracts were sold in the same way. In Ware v. Thompson, 29 Iowa, 65, lands located in different sections and townships are conveyed by the deed. In not one of these cases does it appear that the lands involved constituted one tract according to the government sub-divisions,, or could be designated by one description.

III. It is insisted with much positiveness that appellant did not-in the trial of this case rely upon the deeds conveying the different sections, the instruments which we hold to be valid, but conceded their invalidity. This assertion is readily refuted by the inspection of the argument of appellant’s counsel in which he claimed, with very great positiveness and directness, that these deeds were legal and sufficient to support defendant’s title. It is proper to say this much in answer to the bold assertion, though the matter, were it true, would have nothing to do with settling the law of the case.

No further consideration of the points ruled in our first opinion is demanded. •

*154Bkatüte:_coñstrued. *153.IV. Following prior well considered adjudications in this *154court we hold that Rev. § 784, which provides that a tax deed pdma facie evidence that the lands conveyed therein were subject to taxation, that the taxes were not paid and that the land had not been redeemed prior to the execution of the deed, and that it is conclusive evidence of the regularity and sufficiency of all proceedings upon which the sale and deed are based, is in conflict with the constitution in so far that it makes the deed conclusive evidence of matters jurisdictional and essential in their nature to the exercise of the taxing power, such as the assessment, levy, sale, &e. But as to non-essentials, or matters merely directory, we hold that the deed is conclusive evidence. As to the manner of the exercise of these jurisdictional matters which is entirely tinder the control of the legislature, we hold that the deed may well be made conclusive evidence, See McCready v. Sexton, 29 Iowa, 276; Rima v. Cowan, 31 Iowa, 125, and other cases following them. Whether land shall be sold in parcels of 40 or 640 acres and coxiveyed by the like descriptions, we hold to be a question pertaining to the .manner of the sale and conveyance which is under, the control of the legislature, and that a tax deed may be made by law conclusive evidence thereof.

6. practice : s?pesupreme court. This statute, and our interpretation thereof, counsel for appellee in their petition for a rehearing insist is in conflict ^ie 5th and 14th amendments of the Oonstitution of the United States, which protect the people of the United States from the deprivation of life, liberty, or property without due process of law, secure to all the eqxxal protection of the laws, and prohibit the abridgment of the privileges or immunities of the citizens of the Uixited States. No such point was made upon’ the first argument, and in the petition for rehearing, and the subsequent argument of counsel for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍appellee, we are not enlightened by any discussion of the doctrines upon which it is based. The pleadings in the case do not raise the point, aixd we do not find that upon the trial in the court below it arose upon any ruling of that court. We have been unable to find a single syllable in the abstracts before us from which it may *155be inferred that the point was made in any form in the court” below. Nor is there a word in the arguments of counsel, filed before the petition for a rehearing, to that effect. If there be any thing of the kind, we have been unable to discover it.. The point was certainly not passed upon in. the court below, and is not decided by us, and could not-be, because the case is not presented in a shape to require such decision. Conceding that it is made in the petition for a rehearing, and in the- argument subsequently filed by appellees’ counsel, this is not sufficient to. authorize us to give the certificate asked for by appellees’ counsel, to the effect that the validity of the statute above cited was drawn in question in this case on the ground that it is in conflict with the Constitution of the United States. Upon such a certificate counsel propose to take the case for review to the United States Supreme -Court. There .are two objections to ordering the certificate to be spread upon our record, each of which is insuperable. First: The matter we aré asked to certify is not in accord with the facts. “We are nor permitted.to give fictions of this land a place upon the records of this court. Second: The certificate, even should it be given, would not confer jurisdiction upon the United States Supreme Court. The fact that the validity of the law of this State was called in question on account of its repugnance to the Constitution of the United States must appear upon the face of the record before the decision of this court will be reviewed by the United States Supreme Court; the mere fact • that such a point was made upon the argument by counsel, is not sufficient. The certificate of this court alone will not confer upon the United States Supreme Court jurisdiction. Parmelee v. Lawrence, 11 Wal., 36; Railroad Company v. Rock, 4 Wal., 177; Lawler et al. v. Walker et al., 14 How., 149. It will not therefore be given-.

The conclusions of our former opinion are adhered to, and the decree of the District Court is , Ee;versed.

Concurrence Opinion

Cole, J.

— I can concur in the conclusion reached by the foregoing opinion, but I prefer to rest that conclusion upon the facts established by the record, that the assessments were *156made and tbe lands were listed, advertised, sold and conveyed in eighty-acre tracts, and thereby the cases are fully brought within the very ‘-’terms, as well as within the principle of our former and repeated decisions. Corbin v. DeWolf, 25 Iowa, 124; Stewart v. Corbin, Id., 144; Ware et al. v. Thompson et al., 29 Iowa, 65; Johnson v. Chase et al., 30 Iowa, 308; Rima v. Cowan, 31 Iowa, 125, and other cases.