Soukup v. Union Investment Co.

84 Iowa 448 | Iowa | 1892

G-iven, J.

I. The appellee contends that, as the -defendant Barnhill, treasurer, does not join in the 1. Appeal: parties. appeal, and was not served with notice thereof, the appellant cannot prosecute this appeal. Mr. Barnhill, though a proper, was not a necessary, party to the action as presented in the petition. All that was asked as to him was that he be enjoined, as treasurer, from issuing a tax deed to his co-defendant on a certain certificate named. The plaintiff’s relief would have been complete by an injunction restraining the defendant company from receiving such a deed. The treasurer is in nowise concerned in, or even a proper party to, the issues joined in the cross-.bill and reply, as in those issues neither party is claiming anything under the certificate to Mr. Stewart. In Moore v. Held, 73 Iowa, 538, it is held that a failure to serve notice upon co-parties is not jurisdictional, but the court can consider such questions in the case as affecting only the rights and interests of the appellant and the adverse party. See also Nesselrode v. Parish, 59 Iowa, 570. It does not appear that Mr. Barnhill, treasurer, has any rights or interest in conflict with the claims of either of the other parties to the case. The appellant has the right, under this appeal, to have the questions in the case, as between it and the appellee, considered.

II. It will be noticed that in his petition the plaintiff only claimed title to the southwest quarter of 2. Tax Titles: deed: description. the northeast quarter of the northwest quarter of section 36, being ten acres; but by the cross-bill of the defendant company and the'plaintiff’s reply thereto it appears that each is claiming title to the west half of said northeast quarter of the northwest quarter of section 36. The plaintiff’s title is founded upon two tax deeds, — one issued October 15, 1868, to E. P. Kingman, on a sale for the taxes of 1864; and the other issued September 10, 1880, to James C. Toung, on a sale for the taxes of 1872/ James 0. Young, through several intermediate grantors, by quitclaim acquired the title of Kingman, and thereafter, on January 17, 1881, conveyed by quitclaim to John M. Ourless, who conveyed by warranty deed, dated December 27, 1881, to the plaintiff, who went into possession, and has been in possession ever since. The questions made as to the plaintiff’s title relate entirely to the two tax deeds.

The questions made as to the tax deed to Kingman on sale for the taxes of 1864 are that the north ten of the twenty acres described therein were taxed to one N. B. Brown for that year, and that Brown paid said taxes. It is also contended that the description of the land in the deed to Kingman is too indefinite. The appellant’s abstract shows that the treasurer testified that Brown paid the tax of 1864, hut it is denied in the appellee’s additional abstract that he so testified; and, nothing further appearing, we must act upon the denial, and hold that the defendant failed to prove payment by Brown.

The description in thp deed to Kingman is, “West part, northeast quarter, northwest quarter, twenty acres,” of said section 36. We think the description sufficiently definite to identify the lands conveyed. If it were, “West half, northeast quarter, northwest quarter,” of said section, its sufficiency would not be questioned; but it is “West part, northeast quarter, northwest quarter, twenty acres.” The words “twenty acres,” added as they are, render the description sufficiently definite. “That is certain which may be rendered certain.” This description covers the west twenty acres of the forty described, and its identity may be ascertained by measurement. It will be found upon examination that the description is noticeably different from any of those held to be insufficient. In Roberts v. Deeds, 57 Iowa, 320, cited, the description, “Northwest part of northeast section 31, township 74, range 8 west, containing three acres,” was held not to describe the lands owned in that section by Deeds, as what he did own lay only along part of the west line of said tract. It is there said: “The decisive question in this case is this: Is the description used in the tax books and deed sufficient to identify the land owned by Deeds'?” It was held that it did not, because of the peculiar form of the lands so owned, as stated in the opinion. In Collins v. Storm, 75 Iowa, 36, also cited by the appellant, the description was, “the west fractional half quarter of the northwest quarter of section 7,” etc. This was held not to describe the land in question or any particular part of it. It will be seen, on comparing these descriptions with the one in question, that they lack the certainty that the words here used express.

III. The only question presented as to the tax deed to James C. Young is that the notice of expiration of 3. -: -: notice: sufficiency of service. time for redemption was not served upon the person in whose name the land was taxed. It appears that a notice was served on John M. Curless by James C. Young on or prior to May 19, 1879. The precise date is not shown in the return, but it must have been on or before the nineteenth, as upon that day Mr. Young verified the return, and the notice was filed on the twentieth. There is no evidence as to whom the land was taxed in 1879, but the appellee contends that we must presume that it was taxed to the same person to whom it was taxed in 1878, and that, as this was not John M. Curless, the service of the notice on him did not confer the right to execute the deed. The deed being prima facie evidence of the regularity of all proceedings prior to its execution, it must be presumed, in the absence of a showing to the contrary, that the notice was served upon the person in whose name the land was taxed. There being no showing to rebut this presumption, we must hold that the notice was properly served upon John M. Curless.

IY. It was upon the strength of this title that the appellee asked in his original petition that the 4. -: tax certificate: rights of assignee. defendants be enjoined from executing and receiving a tax deed on the certificate to William Stewart. Stewart assigned this certificate to the plaintiff’s grantor Curless, and upon it was indorsed the agreement of Curless not to sell or transfer the same, “nor procure the treasurer’s deed for said premises. I have sold and conveyed to Joseph Soukup, by warranty deed, free from all incumbrances whatever.” The appellant took this certificate with that indorsement thereon, and is not entitled to a deed under it. Therefore, unless the appellant’s title is superior to that of the appellee, the appellee is entitled to an injunction as prayed in the original petition.

Y. We next inquire as'to the appellant’s title. Jason C. Bartholomew, holding under patent from the 5. Deed: recitals: construction. United States, conveyed the north half of the west half of the northeast quarter of the northwest quarter of said’ section 36, which tract passed by successive conveyances to one J. H. Lansley, who conveyed to appellant. Prior to his conveyance to the appellant, Lansley received a quitclaim deed from Susan Olney for the entire forty, in which the grantor is named as “Susan Olney, formerly widow and sole heir of Jason C. Bartholomew, deceased.” ■ That she was such widow or heir cannot be inferred from the recitations in the. deed; therefore, we cannot say from the deed alone that the appellant acquired any title thereunder to the land in question.

YI. A' sheriff’s deed, dated January 20, 1888, covering this land, was made to J. L. Wilson, who 6. Judicial Sales: deed: validity. 'conveyed to Lansley before Lansley’s conveyance to the appellant on a sale on a judgment against Curless for some nine or ten dollars costs accruing in the foreclosure of the mortgage. It appears quite satisfactorily that the judgment and costs had been paid long before the issuance of the execution upon which this sale was made, a former execution upon which the money was made not having been returned.

Without discussing the appellant’s abstract of title further, it is sufficient to say that the defendant acquired all the title that it now asserts after the commencement of this action; that it took nothing by the sheriff’s deed to Wilson, nor by the quitclaim deed from Susan Olney to Lansley; that its only shadow of title is to the north half of the west half of the northeast quarter of the northwest quarter of said section, which title in its grantors was divested by the two tax deeds under which the appellee holds the property. Another consideration in favor of the appellee is the íaet that he was in nndistnrbed possession of the land for more than eight years.

We think the equities of the case are with the appellee, and that the judgment of the district court should he affirmed.