41 Iowa 566 | Iowa | 1875
Section 902 of the Code of 1873 provides that • “no 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.”
In this case the plaintiff has been in the open, actual, adverse possession of the land for more than twenty years, and seven and one-half year’s had elapsed at the time of the commencement of the action since the recording of the tax deed. The deed, therefore, whilst it may create a cloud upon plaintiff’s title, confers no rights upon defendants which can be made the basis of a legal action. The defendants are out opossession, and their right of action for the recovery of possession is barred by the statute of limitations. Yet an abstract of title would show that the lands had been sold for taxes and a deed had been made to defendants. The facts to defeat the validity of this deed, to-wit, the continued possession of plaintiff, rest in parol.
The plaintiff is the original owner and has always been in possession. A tax deed upon which defendants can maintain no action, which is unavailing for any purpose except to cast a cloud upon the title of plaintiff, is outstanding in defendants. To remove this cloud, so that plaintiff’s title may appear of record clear and complete, is the only object sought by the action. So long as plaintiff remains in possession-of
Affirmed.