Sackett v. Osborn

26 Iowa 146 | Iowa | 1868

Beck, J.

1. Taxes: when lien warrantly deed. — On the 9th day of July, 1867, plaintiff, and defendant Osborn entered into a written agreement, whereby Osborn undertook to convey to Pontiff a certain town lot by deed of war-ranty to be executed and delivered on the first day of N ovember following. Plaintiff paid a part of the purchase-money on the day of the execution of the contract, and agreed to pay the balance in installments, one on the 1st of November, 1867. The installments to be paid after that day, to be secured by mortgage‘upon the lot. By the terms of the instrument, plaintiff was to have immediate possession of the property, except certain rooms in a house thereon. A stable upon the premises was to be occupied jointly by the parties. Under this agreement plaintiff went into the possession of part of the property as stipulated, and collected the rents for other portions not occupied by him or Osborn, from the 9th of July, 1867, the date of the execution of the instrument. On the 17th of October following, he obtained full possession. Osborn moving out of the part he occupied. On the 1st of November, 1867, defendants, Osborn’s wife uniting therein, executed a deed for the lot to plaintiff, which contained the usual covenants against incumbrances.

The deed recites that it is given “ in affirmance of ancl pursuant to a contract made between Charles L. Osborn and said D. S. Saclcett, on the 9th day of July, A. D. 1867.” The property at the date of the execution of the contract was the homestead of Osborn.

Chapter 10, acts ninth general assembly, provides, that “ all taxes upon real estate shall, as between vendor and purchaser, become a lien upon real estate on and after November 1st of each year.”

2. contract: ratification. The contract of July 9th, with the payment of a part of the purchase-money, and possession of the premises by plaintiff on the 17th of October, was indisputatdy a vapd gale 0f the property, leaving out of view the rights of the wife of Osborn and his co-tenant, Wilbur. These parties, however, by the execution of the deed, and under its express terms, adopted and ratified the contract. Such ratification related back to the date of the contract, and gave it the same force and effect as though it had been executed by them. Attex, Noyes & Co. v. Phelan & Anderson, 5 Iowa, 341; Dubuque Female College v. Dist. Township of Dubuque, 13 id. 561; Story’s Agency, § 244. The property having been sold to plaintiff prior to the first of November, the-taxes, as against the vendor, were not, at the date of the sale, a lien thereon, against which the covenants of defendants’ deed operates.

The statute above cited, it seems, was intended to remove all doubt in cases like this one under consideration, by so enacting that vendors shall be liable for the taxes of the current year only upon lands sold after the first day of November. Th'e defendants are therefore not liable for the taxes, and the action cannot be sustained against them.

Reversed.