Rayburn v. Kuhl

10 Iowa 92 | Iowa | 1859

Woodward, J.

The plaintiff having made her case, the defendant offered in evidence a deed made by the sheriff in January, 1845, under a sale of the lot in December, 1842, f6r the tax of that year, which was not admitted, because between the sale and the making of the deed, by virtue of an act of the legislature (Acts of 1843, p. 546,) the sheriff ceased to be the collector, and therefore had no authority to execute the deed. '

The defendants then offered a deed from the town of Davenport, to A. Le Claire, of 2d April, 1847, under a salo for the town corporation tax of 1844, which on motion was rejected. As this deed was not mad q prima facie evidence of the regularity of proceedings, and as the party did not offer evidence of the proceedings in support of the tax and the sale, its rejection was proper. The courts will not ordinarily control the order of proofs, but the party should show an intent to introduce that which is requisite.

The defendants then introduced a deed of the lot to Le Claire, dated 16th February, 1846, made by the treasurer, who was collector, and successor of the sheriff, under the same sales. They also referred to the act of 19th June, 1844, (special session, in Acts of 1845, p. 4,) which authorized collectors in office to execute deeds on prior sales. The plaintiff objected to this, that the attempt of the sheriff to make a deed, exhausted the power; which objection was rightly overruled.

The deed thus introduced was taken as 'prima facie evidence of the regularity of the proceedings, and it was so if the act of the 19th June, 1844, above refered to, made it so. The errors assigned by the appellants are numerous, and it would require much time and space to examine all of them. We proceed therefore at once, to one of them, under which we point out matter, which in the opinion of this court, is fatal to the cause of the defendants. The last assignment is, that the finding of the court is erroneous, in view of the evidence in the case.

The act of 15th January, 1841, (Acts 1840-41, p. 65-68,) under which this tax was levied, in section ten, provides that after the assessment roll is corrected, the same shall bo laid before the board of commissioners, and if it is found to be correct, “ the board shall accept it in writing on the back thereof, signed and attested by their clerk,” and that it shall be filed in the clerk’s office, to remain an unalterable record, &e. The evidence offered te^meet this requisite was, that on a certain date, “ Wm. Eldridge filed the following assessment roll for 1842, which was examined by the board and ordered to be filed with the clerk.” This is signed by two of the commissioners, and on the clerk’s testifying that he was ordered to attest it, but had omitted it, he was permitted to add his attestation. In the opinion of this court this is not an acceptance of the assessment roll. It is examined and ordered to be filed, but not accepted. The filing is not an acceptance, for the roll belongs to the office, even if not accepted. It may be filed away for further examination.

The completion and acceptance of the assessment being an essential toward the validity of the tax, this takes away the prima facie force of the deed; and this is required to be in writing, so that it cannot be aided by parol.

One question remains. The defendants offered in evidence an agreement dated June 16th, 1857, since the commencement of this suit, between Erench Rayburn tbe guardian of tbe plaintiff, by bis attorney, J. Johns, on tbe one part, and tbe defendants, Ditzen and Kocb, and H. R. Claussen (under whom they derive title,) in relation to tbe west balf of tbe lot. By tbis agreement tbe guardian undertakes to “relinquish” tbis suit and all claims made against these parlies, and to take tbe requisite steps to obtain license to sell this balf of the lo't, and this being obtained that a warranty deed, approved by tbe County Court, shall be executed and delivered to tbe defendants. In consideration of tbis, these two defendants, with Claussen, agree to pay tbe guardian one thousand dollars at a time and in tbe manner therein provided. Tbis agreement was rejected by tbe court, but the reasons therefor do not appear. Tbis matter receives very little attention from tbe counsel,but those for tbe plaintiff say they are willing to carry out tbe agreement, but that tbe court considered that they could not act upon it. If tbe court think it binding they offer no objection.

Tbis agreement has too much tbe character of one to sell a part of tbe properly, as it does not appear to have been confirmed by tbe guardian, but on tbe contrary be refused to recognize it, we think tbe court was right in not acting upon it. It was hardly within the scope of the authority of tbe attorney to render it obligatory without at least tbe guardian’s assent.

Owing to circumstances which render it inconvenient for one of my brother judges to prepare tbis opinion, I am instructed to express their views. I bad prepared an opinion entering more largely into tbe case, and taking a different course of thought, but tbe majority prefer that it should be placed upon tbe above ground. And whilst I am not prepared for a dissenting view, yet it does not carry my unhesitating assent.

Judgment affirmed.