Rice v. Bates

Mar 19, 1886
Reporters:
,
Before:
Reed
Reed, J.

i. tax sale proof of servicg of notice to redeem: by whom made. It is not claimed that Ayres acquired the title under the deed executed by the treasurer in 1878. There was no competent evidence of the service of the notice to redeem on file in the treasurer’s office when that deed was executed; hence the right to 7 ° redeem the land from the sale had not expired, and the treasurer did not have authority to execute a deed. American Missionary Ass‘n v. Smith, 59 Iowa, 704.

Appellant contends that the deed which was executed in 1883 was also given without authority, for the following rea*395sons: (1) Ayres was not the holder of the certificate when his affidavit of the publication of the notice to Barrett was filed, the same having been surrendered to the treasurer, and by him canceled, when the first deed was executed, and he had, in the mean time, sold and conveyed the land to Bates by an absolute conveyance; and (2) as the land was taxed to Bates for the year in which the deed was executed, the right to redeem the land from the sale could be terminated only by serving him with notice to redeem.

2._;_: Scertificate1 <v£tci’ 0x-change lor voicl deed, and conveyanee oí land to a stranger. The first question for determination, then, is whether Ayres was, within the meaning of the statute, the holder of the certifieate of purchase when he filed his affidavit showing the publication of the notice to redeem. ^ The statute (Code, § 8941 provides that the serv- ’ . ’ 1 1Ce of the notice and manner thereof shall be pr0ven by the affidavit of the holder of the certificate of purchase, his agent or attorney. Ayres was not the holder of the certificate in the sense of having it in his possession; but we do not think that physical possession of the instrument is what is meant by the statute. By “ the holder of the certificate” is meant the owner of it, or the one who, at the proper time, will be entitled to demand a deed under the sale, and he is the proper person to make the affidavit of the service, even though the certificate should be in the actual possession of another, or should have been lost or destroyed. As Ayres was not entitled to demand a deed when he surrendered the certificate to the treasurer in 1878,‘his rights in the premises were in no manner affected by that act. All that was done at that time was nugatory. The right of the owner of the land to redeem from the sale was not terminated, and Ayres retained his lien upon it for the taxes paid by him, and his right to a deed after the right of redemption should be terminated; and it is equally clear, we think, that the rights acquired by him under his purchase at the tax sale were not transferred to Bates by his conveyance of the land to him. If he had owned any interest in the land when that *396conveyance was given, the deed would have operated as a conveyance of that interest. Code, § 1930. But he owned no interest in the land at that time. The purchaser of lands at a tax sale acquires no right or interest in the land until he receives a deed therefor. While the property is subject to redemption he has but a chattel interest. Williams v. Heath, 22 Iowa, 519; Eldridge v. Kuehl, 27 Id., 160; Mallory v. French, 38 Id., 431. The deed by which Ayres assumes to convey the land to Bates did not operate as an assignment of this chattel interest. He was therefore the holder of the certificate when the proof of the service of the notice to redeem was made.

3, __. tfoJtore-no” toflihigproof sossnient o£S” laud. > The remaining question is whether the treasurer was authorized to execute a deed on proof of the service on Barrett of the notice to redeem, the land being taxed to another person for the year in which that proof was made. The statute that requires the notice re(^eem be g¡ven (Code, § 894) provides that, “ after the expiration of two years and nine months after the date of sale of the land for taxes, the lawful holder of the certificate may cause to be served upon the person * * * in whose name the land is taxed a notice. * * * ” The meaning of this language is clear. The notice is required to be served upon the person in whose name the land is taxed at the time the notice is given; and, by subsequent provisions, the right of the holder of the certificate to a deed accrues in ninety days from the filing of the proper proof of the service, if the land then remains unredeemed. If the notice is served on the proper person, the right of the holder of the certificate to a deed at the end of ninety days after the proof of the service is filed cannot be affected by any changes which may, in the mean time, occur as to the taxation of the property or its ownership. If every step in the proceeding were taken at the moment the right to take it accrued, it might often happen that an assessment of the property would be made during *397the ninety days after the filing of the proof of service, and that at the end of that time it would stand taxed in the name of a different person from the one in whose name it was taxed when the notice was served. If plaintiff’s position is sound, it would follow that in every such case the notice would be ineffectual to terminate the right of redemption. This is clearly not the meaning of the statute, and the rights of the parties,- or the effect of the service of the notice, is not at all affected by the fact that there was a delay in making the proof of the service.

Affirmed.