46 Iowa 150 | Iowa | 1877
I. In his original petition plaintiff relied upon a tax sale and deed of the land made in 1866. By an amended petition he shows that since the commencement of this action he acquired another tax title which is based upon a sale of the land for taxes in 1859. lie thus relies upon two tax titles.
This court held in Abell v. Cross, 17 Iowa, 171, that, in proceedings to foreclose tax titles under the statute in force at the time the action was prosecuted upon which plaintiff relies in his amended petition, publication of notice could be made only upon the order of the court or judge thereof, or of the judge of the county court; that the statute authorizing constructive notice must be strictly pursued and want of compliance therewith defeats the jurisdiction of the court and renders the decree void. Applying the doctrine to this case, we are required to hold that the court below ruled correctly in sustaining the demurrer.
Without replying to this inquiry, we are driven to the conclusion that the provision does not prevent the resistance offered by defendants to the tax title. The act of the plaintiff and the county treasurer in uniting to make disposition of the land at a private sale without conforming to the requirements of the statute, and thus to give it the color of a tax sale, was in violation of the statute and fraudulent as to the rights of. the land owner. The treasurer was required by law to offer the land at public sale; he violated this requirement. The law required the plaintiff, if he bought the land at tax sale, to acquire it in that way only at public sale. The acts of the treasurer and plaintiff in selling and buying at private sale were fraudulent as to defendants. He may, therefore, under the language of the statute relied upon, set up the fraud to defeat the tax title. Corbin v. Beebe, 36 Iowa, 336.
■ Till. We need not consider the defense of the statute pleaded by defendants against plaintiff’s action. The possession of the land is established to be in defendants; we have determined that plaintiff has no title or right to the land. As against him defendants are entitled to hold the land and to the relief granted by the decree which declares plaintiff’s title is void and directs his tax deeds to be set aside. The decree does not validate defendants’ title; it invalidates plaintiff’s. In this way is relief extended to defendants.
It will be observed that we hold plaintiff’s tax title first acquired void because of the fraud in the sale. We do not hold that the taxes were not collectible and could not be enforced against the land, and that there was, therefore, for this, or any other reason, no sale of the land. It is the case of a valid tax and a sale void for fraud. We have repeatedly held, in such case, that the holder of the tax title is entitled to recover a sum equal to the amount that the defendants would have had to pay the treasurer in order to redeem the land and satisfy all the taxes if they had not been paid by the pur
The decree of the Circuit Court, so far as it sets aside plaintiff’s tax title and renders relief to defendants, will be affirmed: so far.as it denies the plaintiff’s right to recover the taxes, penalties and interest, as above expressed, it will be reversed. The cause will be remanded to the Circuit Court for the determination of the amount which plaintiff is entitled to recover and for a judgment therefor, which shall be a lien upon the lands. The decree is
Modified and affirmed.