90 Iowa 423 | Iowa | 1894
This action was commenced in December, 1889, to quiet, in plaintiff, the title to the east half of the northeast quarter of section 18, in township 97 north, of range 35 west, in Clay county, which he claims to own by virtue of a tax deed. The defendant, Young, claims to be the owner of the title through conveyances from the general government. The district court adjudged the tax deed to be void, and that, upon the payment into court by Young of
Under these circumstances tbe deed was properly received in evidence. 1 Devi. Deeds, section 348. See, also, Jamison v. Fopiana, 43 Mo. 566. As tbe deed from Smeltzer to Courtright purports to convey tbe title in fee simple with covenants of warranty, the title-acquired by Smeltzer through tbe second deed to him inured to tbe benefit of Courtright. Eevision, 1860, section 2210; Code, section 1931. Tbe name of the-grantor in tbe body of tbe deed of Courtright to Young-is given as Erastus J. Courtright, but tbe signature-appears to be that of Erastus I. Courtright. Much is said in argument in regard to tbe effect of this apparent variance, and it is insisted by appellant that there is no-competent evidence that tbe grantee of Smeltzer is tbe grantor of Young. Both Erastus J. Courtright. and Young testify in tbe case, and show that tbe former sold tbe land to tbe latter, and executed to him the-deed in question. That testimony and tbe deed were competent as tending to prove tbe averment of tbe answer that Young was tbe owner in fee simple of tbe land, and it was not necessary to plead that E. J. Court-right is tbe same person as Erastus I. Courtright. 1 Devi. Deeds, section 188. An abstract of title which follows tbe petition, and which we assume was attached
II. The appellant further insists that defendant •can not question the tax deed, for the reason that he has not paid all taxes due upon the land. It is shown that all taxes levied on it for the years 1877 to 1890, inclusive, have been paid by A. W. Miller, and we must presume that all the taxes due prior to the tax sale have been paid; therefore, it appears that there were no taxes due when this cause was tried by the district court. Adams v. Burdick, 68 Iowa, 668, 27 N. W. Rep. 911; Taylor
III. It is agreed that the tax list for 1877 was placed in the hands of the treasurer on the twenty-second day of November of that year, but none of the delinquent taxes for the years 1874, 1875, and 1876 were ever entered in it. That omission rendered the sale invalid. Code, section 845; Dows v. Dale, 74 Iowa, 109, 37 N. W. Rep. 1; Barke v. Early, 72 Iowa, 274, 33 N. W. Rep. 677; Gardner v. Early, 69 Iowa, 43, 28 N. W. Rep. 427. But section 902 of the Code provides that ‘too action for the recovery of real property sold for the nonpayment of taxes shall lie unless the same be brought within five years after the treasurer’s deed is executed and recorded.” More than eight years intervened between the recording of the tax deed in controversy and the commencement of this action, and it is urged by the plaintiff that it is barred by the statute. In Griffin v. Bruce, 73 Iowa, 126, 34 N. W. Rep. 773, it was held that the omission of the treasurer to comply with the provisions of section 845 was a mere irregularity, of which advantage must be taken within five years after the recording of the tax deed, to avoid the bar of section 902. But it is contended by defendant that plaintiff is not entitled to rely upon the bar of the statute, because he did not plead it. It is the general rule that a party relying upon the statute of limitations must plead it in order
IY. The appellant filed in the district court a motion to retax the costs, based on the ground that defendant had not tendered the payment of taxes. The court- sustained the motion to the extent of taxing thirty-seven dollars, .thirty-two and one half cents of the costs to defendant. The remainder, amounting to forty-three dollars, eighty-seven and one half cents, were taxed to the plaintiff. We think that action is sustained by the record.
Y. The appellant contends that the appellee has not paid into court the amount required by the decree, in order to have his title established as against the appellant. If that is true, we fail to discover any reason for the appeal of the latter. But the record shows that the required amount was received by the clerk — “of Samuel Young by Parker & Richardson”— within the time fixed by the decree. The claim of appellant in regard to this matter is based upon a statement in an amendment to his abstract, to the effect that defendant has sold the land in controversy to Parker & Richardson since the decree of the district court was rendered, and that the payment was really made by them for their own benefit. The statement is not sustained by the record, but, if true, would not necessarily entitle the plaintiff to relief in this court. Code, section 2561.
YI. Complaint is made of an additional abstract filed by appellee, on the ground that it was unnecessary, and it is asked that the cost thereof be taxed to .him. We find that it contains portions of the record omitted from the abstract, or not fully abstracted, which were material to a determination of the action on its merits, and the application to tax its cost to appellee will be denied. The conclusions announced