47 Iowa 236 | Iowa | 1877
I. The evidence, by a very fair preponderance, establishes the fact that plaintiff’s grantor paid, the taxes upon the land in controversy, for the year 1864, long prior to
In order that this section may apply, the-concurrence of two things is essential. First. The properly must have been sold. Second. The sale must have been for th'e non-payment of taxes.
1. In Case v. Albee, 28 Iowa, 277, it was hehLthat, notwithstanding the lapse of five years from the recording of the deed} the original owner might show that no sale had in fact been made. In Nichols v. McGlathery, 43 Iowa, 189, it was held that the statute of limitations does not apply where the assessment was void, because in that cáse there can be no sale which the law will recognize.
2. By the express language of the statute it is necessary to give effect to this limitation that the sale shall be for, or on account of, the non-payment of taxes. • The statute roads, no action shall lie for the recovery of real property sold for the non-payment of taxes. The fact of the non-payment of taxes must exist, and a sale because of such non-payment, or the statute in question can have no application. This position is supported by section 897 of the Code, 784 of the Revision,
The land in question being uninclosed prairie, and not in the actual possession of any one, was, at the time of the execution and recording of the treasurer’s deed, in the constructive possession of the holder of the patent title. As the treasurer’s deed, under the statute quoted, conveyed no title, it worked no change of this constructive possession. The holder of the patent title, therefore, remained in constructive possession for more than five years from the recording of the tax deed, and until after the tax deed, by the statute of limitations, ceased to be effective for any purpose.
The statute of limitations having run against the tax deed before defendant entered upon the land in May or June, 1876, and bi’oke one and one-half acres, such entry was a mere trespass and conferred upon defendant no rights. But even this possession does not appear to have been continued, so that, when this action was commenced, the plaintiff was in the constructive possession of the land. We have, then, this case; the plaintiff, the owner of the patent title, in the constructive possession
We think the decree of the court below is correct.
Affirmed.