Shawler v. Johnson

52 Iowa 472 | Iowa | 1879

Day, J.

— It is conceded that, if there was a sale in fact of the lands in question, the statute of limitations has run in favor of the deed, and that the appellant, if plaintiffj would be barred from questioning the validity of the title derived through the sale. It is claimed, however, that the sale is void, and that therefore the statute of limitations does not run in favor of it.

1. tax sale: ureto^IávCT-* tlse1. It is claimed that the sale is void because the advertisement does not contain the land in-controversy. The answer alleges that notice was given that a sale for dclinTnent taxes would occur on the day that the sale was made. The only complaint made under this head is that the notice did not contain the land in controversy. The notice fixed the time of sale. The delinquent was bound to know that the taxes on his land had not been paid. The law notified him that all delinquent lands Avere required to be offered for sale, lie cannot shield himself from the consequences of his neglect merely from the fact that the published notice did not contain the land in question. Knowing that his lands were delinquent it ought to have occured to him that the omission was a mere mistake, and he should have governed his action in accordance with the suggestion.

Upon this question see Allen v. Armstrong, 16 Iowa, 508; Hurley v. Powell, Levy & Co., 31 Id., 64; Madson v. Sexton, 37 Id., 562.

__)ime concius?™ evidence. 2. It is insisted that the sale is void because not made on the first Monday of October, nor on the first Monday of some succeeding month. In Clark v. Thompson, 87 Iowa, 536 (541) it is held that-the time of sale is-not a jurisdictional matter, and that the deed is conclusive evidence of a compliance with the law in that respect. .

8. It is urged that the fact that a receipt was once issued, and then the stub canceled without the knowledge or consent of defendant is presumptive evidence that the taxes were paid. It may be that this fact would be evidence entitled to some consideration of the payment of this tax. But the answer does not allege such payment. No issue of such payment is made. The answer, in this respect, pleads mere evidence, and evidence of a fact not put in issue by the pleadings.

3__. ao_ years-’stau'te ói:limitations, 4. It is insisted that the plaintiff, by his petition and abstract, bases his right to said land on a tax deed, and so brings the same into court, and under such circumstances defendant cannot be barred by the statute of limitations from contesting the validity of the deed. In Peck v. Sexton & Son, 41 Iowa, 566, it was held that the original owner of lands, in possession of the premises,- cannot be barred by the statute °*’ limitations from maintaining an action for the removal of the cloud of an outstanding tax title. The same principle applies to the owner of the premises under a tax title, who is in possession. He may, notwithstanding the statute, maintain an action to quiet his title. The mere fact that he brings such action does not open up the way for the patent title owner to assail the tax title in a manner that he could not do if he were plaintiff. As we have before said, the appellant concedes that if there was in fact a sale, he would be barred, if a plaintiff, from' questioning the validity of the tax title. He is equally barred, being the defendant.

The demurrer was properly sustained, and the decree in plaintiff’s favor was properly rendered. .

Affirmed.