85 Iowa 130 | Iowa | 1892
1. The ground of demurrer to the petition being “that the facts stated therein do not entitle the plaintiffs to the relief demanded,” we must look to the petition alone for the facts upon which to determine the questions presented. The first contention is whether the petition shows that the defendant T. W. Harrison was incapable of acquiring title to the lands, •or any of them, under the sales set out, for delinquent taxes. The allegations relating to this question may be stated as follows: Henry E. Seymour, deceased, ■of whom the plaintiffs Julius H. Seymour, Edmund Seymour, and William W. Seymour are sole heirs, was •the owner of the patent title to the east half of the northeast quarter of section 17, township' 95, range 31, Palo Alto county. In 1878 he executed a quitclaim
The appellants’ first contention is that Harrison was incapable of acquiring title to these lands under
It is a familiar rule that the owner of land, or one under obligation to pay taxes thereon, cannot acquire a tax title so as to defeat incumbrancers or others setting up a claim or title adverse to him. We have seen that by the decree it was adjudged that Harrison never had any ownership or interest in the land under the quitclaim deed to him. If nothing more appeared, it would be very clear that no obligation rested upon him to pay taxes, but he was adjudged to hold the title to the
The certificates of the sales of 1881 covered but a small fraction of the land, one being for one fortieth of the north forty acres and the other for one eighth of the south forty acres. Authorities are cited by the appellants emphasizing the obligation of him whose duty it is to list lands for taxation and to pay the taxes thereon. These authorities apply with full force to the appellants. During all the time from February 3,1881, to the time the appellee received his tax deeds, the duty rested upon the appellants, or their ancestor, to pay those delinquent taxes, or to redeem from the sales made therefor, yet they never offered to do either until the bringing of this suit. We are of the opinion that the petition fails to show that Harrison had such an interest in the land as required him to pay the taxes for which it was sold, or that he held the legal title under such circumstances as would prevent him from acquiring a tax title under either or all* of the certificates.
II. The petition shows that the land in question was taxed in the name of Frank B. G-regg, for the years
The appellants’ contention is that notice to the person in whose name the land is taxed can only be served personally when that person resides in the county; that, if he does not reside, then it must be by publication. It has been repeatedly held that, though the land is taxed by mistake in a wrong name, the notice must be given to the person in whose name it is taxed. Hillyer v. Farneman, 65 Iowa, 227; Bradley v. Brown, 75 Iowa, 180. These notices were properly served upon Gregg as the lands were taxed in his name at the time of the service thereof. Service upon Mr. Seymour or any other person would not have been sufficient. The evident purpose of the notice is to Inform the person served of the matters required to be contained in the notice, and this is more certainly accomplished by personal service, though made without the county, than by publication. The provision .for serving such notice by publication is permissive, and it cannot be said that the purpose of the statute is not fully accomplished when the service is personal. ■There is nothing in the statute requiring the service of notice upon the owner of the land, unless it is taxed in jhis name. The appellants and their ancestor might readily have put themselves in the way to be entitled to such notice. In Rowland v. Brown, 75 Iowa, 679, it is
Our conclusion is that the petition as amended fails to show facts entitling the plaintiff to the relief demanded, and that the demurrer was therefore properly sustained. Aeeikmed. ,