45 Iowa 645 | Iowa | 1877
The tax sale took place October 1st, 1866. The tax deed recites that the certificates were assigned by Stephenson to Atkins February 15th, 1867, and the tax certificates purport to show the assignment of that date. This was long before Stephenson’s quit chxixn to plaintiffs, and if the assignment was x’eally made on that day the plaintiffs took notlxixxg by their transaction with Stephenson, unless Stephenson had authority to act for Atkins ixx the matter, and unless also his act was in such form as to bind Atkins. Thex'e is xxo evidence tending to show when the certificates were assigned other than that above set forth.
The assignmexxt of course took place at the tixne of delivex-y. On this point there is no dii’ect evidence whatevex*. The exe-. cution of the tax deed to Atkins would be px-esnmptive evidence that the certificates had been delivered to him before that time, and a delivery being shown we think the presnmption is that they were delivex’ed at the date of the assignment. We must consider then that Atkins became the owner of the cei’tificates on the 15th day of February, 1867. The transaction between plaintiffs and Stephenson took place August 2d, 1870. The appellants contend, it is true, that there is evidence tending to show that the certificates had not been assigned at that time.
They introduced Stephenson as a witness, who said: “As to sale of tax certificates I rexnexnber by reference to this deed (his deed to plaintiffs), that I sold the certificates to I. R. and Myron Smith, plaintiffs, through Mr. Cumxnins, of Qxiixxcy.” But this cannot, we think, be construed as a statement that he owned them at that time. ITe undertook to sell them and did sell them so far as he could do so. We think he meaixt nothing more, because he says: “I don’t.I'emember whether I assigned the certificates of purchase to O. B. Atkins before or after the sale.”
Taking it then as established that Atkins becxime the owner before the transaction between Stephenson and plaintiffs, we have to inquix-e wnether Stephenson, as Atkins’ agent, was authoxhzed to make such tx’ansaction.
It appears from the evidence that Stephenson had been
This involved the waiver of a right, or the sale of property. Authority given by a principal to his agent to invest his money, and look after his business generally, would not, we think, enable the agent to sell his principal’s property, even such as might be acquired as the result of the investments.
The appellants, in support of their theory, cite McCarver. v. Nealey, 1 G. Greene, 860. . In that case it was held that a judgment debtor who had paid the judgment to the plaintiff’s attorney of record should be protected in such payment, notwithstanding the judgment had been previously assigned, it not appearing that the judgment debtor had notice of the assignment.- But this decision, to our mind, is not. applicable to the case at bar.. It would not be claimed that if the judgment creditor had sold and assigned the judgment, and after-wards, pretending still to be the owner of it, he had made another sale and assignment of it to a person, without notice, that such person would -be protected. At the time of the transaction between plaintiffs and Stephenson they sustained in contemplation of law the same relation to the certificates that any other person would have sustained who should have purchased them and taken a quit claim deed .of the land. Their right of redemption at that time had expired. Such being the case, we think they should have taken notice at their peril as to whether Stephenson was still the owner of the certificates.
After this suit was commenced Atkins executed a quit claim -deed to plaintiffs. The appellants claim that at that time, if Atkins ever owned the land, he still owned it, and that he then elected to stand on the penalty of his bond to
The decree was substantially that Atkins’ quit claim deed to plaintiffs be declared null and void. This was in accordance with the prayer of Bixby, and we think that he was entitled to have the deed so declared. According to the view we have taken of the case, Bixby was the equitable owner of the land at the time this suit was commenced, holding a title bond to the same. The plaintiffs knew that he so claimed, and made him defendant herein. Afterwards they obtained from his vendor the said, quit claim deed. We think that they are entitled to no advantage thereby.
Affirmed.