27 N.W.2d 21 | Iowa | 1947
Lead Opinion
Plaintiff's petition alleged she became the owner of certain realty in Sioux City, Woodbury County, Iowa, *695
by special warranty deed from the county and she prayed that her title be quieted. James Pontralo, one of the named defendants and the former owner, answered attacking the tax-sale proceedings wherein plaintiff's grantor allegedly acquired title as (1) a sale en masse, and (2) a sale to the county for one year's delinquent tax of a part of the realty involved. The answer also alleged that the tax-sale proceedings and recitals in the deed do not show that there were no other bidders at the tax sale. The answer contended the tax deed to the county was null and void and by way of cross-petition defendant prays that his title be quieted. Plaintiff replied to Pontralo's answer alleging the county auditor filed the affidavit provided for in section
Plaintiff's evidence established her title as derived by the deed from the county, and the filing of the affidavit by the county under section
[1] I. Sections
[3] III. Section
[4] The record shows that as the holder of such title the county took over from appellant the possession of the property and rented it. As the holder and owner of such title the county in possession could, under the statute, after two years after the tax deed was recorded, file the affidavit which would start *698 the running of the additional statutory period of one hundred twenty days.
[5] Appellant was not deprived of his property by the limitation statutes. His property was taken by the tax deed and the limitation statutes merely prescribe a period within which he must assert any claim he might have that this deed was ineffectual as a conveyance of the title it purported to convey. He was not in possession of the real estate. The trial court found the county went into possession of the property the date the tax deed was issued to the county on June 2, 1941, and remained in possession until it sold the property to plaintiff on March 5, 1945. Thus the statute merely cut off a remedy, after a lapse of time, within which time the claimant out of possession was free to assert the remedy. Such a statute does not offend against due process if the statute grants a reasonable time within which process can be had. The rule is thus stated in 16 C.J.S., Constitutional Law, section 615:
"While limitations must comply with the requirements of due process of law, and while a statute of limitations which attempts to bar a debt or other claim without giving a reasonable time within which the right may be preserved is violative of the due process clause, nevertheless statutes of limitation do not necessarily operate to deprive a person of property without due process, even though enacted subsequently to the arising of the claim * * * and limitations work a denial of due process only when so short as to deny an effective remedy."
Appellant does not argue that the time granted to him under the statute within which to assail the validity of the tax deed was too short, nor does he argue that the requirement that his claim of invalidity of the tax title be filed with the county recorder, during the last one hundred twenty days was unreasonable. It does not readily appear to us that such time was too short or the filing requirement without justification.
[6] The question of whether or not a statute of limitations violates due process is not dependent upon the nature of the claim the party can assert. The defects can be mere irregularities or informalities or the defects can be jurisdictional. The *699
nature of the claimed defect is important when considering whether the right to assert it is barred by a curative act, for the legislature can cure only irregularities and informalities. It cannot cure a jurisdictional defect, for this would be making legal, by legislative fiat, a deed which was absolutely void, and hence it would be unconstitutional as impinging upon due process. But the legislature can, by a statute of limitations, bar the right to assert a jurisdictional defect by one who is not in possession of the realty. This was held in the case of Dunkum v. Maceck Bldg. Corp.,
"Defects in tax titles which are not jurisdictional may be remedied by curative acts * * * The Legislature cannot, however, by its fiat make legal a deed which was theretofore absolutely void because of jurisdictional defects. A curative act enacted for such a purpose is unconstitutional and void. It is an attempt to deprive the owners of the land of their property without due process of law * * * But the Legislature may legally enact a Statute of Limitations to prevent the assertion of a right to question the validity of a tax title of vacant and unoccupied lands because of jurisdictional defects in the sale and in the proceedings leading thereto, provided a reasonable time is given for the assertion of the right before the statute becomes operative."
See, also, Meigs v. Roberts,
In the case of Meigs v. Roberts, supra, Judge Cullen states: *700
"A curative act in the ordinary sense of that term is a retrospective law acting on past cases and existing rights. The power of the legislature to enact such laws is, therefore, confined within comparatively narrow limits, and they are usually passed to validate irregularities in legal proceedings or to give effect to contracts between parties which might otherwise fall for failure to comply with technical legal requirements. (Cooley's Constitutional Limitations, p. 454.) * * * But there may be in legal proceedings defects which are not mere informalities or irregularities, but so vital in their character as to be beyond the help of retrospective legislation; such defects are called jurisdictional. This principle does not apply to a Statute of Limitations, for such a statute will bar any right, however high the source from which it may be deduced, provided that a reasonable time is given a party to enforce his right."
The claimed defects in the instant case are (1) that the tax-sale proceedings show a sale en masse (2) that it is not shown that the sale was not competitive (3) that the tax-sale proceedings show that a part of the property was sold to the county for one year's delinquent tax. The first two claimed defects might well be held to be irregularities. The third would probably be a jurisdictional defect. Nevertheless, the statutes constitute a bar to appellant's right to contest the validity of the tax title.
A statute which resembles the limitation statutes under consideration is section
"We may observe * * * that there can be little doubt of the desirability of statutes giving greater effect and stability to record titles."
What was there said with respect to record title is equally applicable to tax title. By curative acts, such as section
WENNERSTRUM, C.J., and SMITH and MANTZ, JJ., concur.
HALE and HAYS, JJ., concur in result.
OLIVER and GARFIELD, JJ., dissent from Division I.
"State of Iowa } } ss. _______ County }
"I, _____________, being first duly sworn, on oath depose and say that on ________ (date) the county treasurer issued a tax deed to __________________ (grantee) for the following described real estate: ___________________________; that said tax deed was filed for record in the office of the county recorder of ___________ county, Iowa, on ________ (date), and appears in the records of that office in __________ county as recorded in Book ___ Page ___ of the ____________ Records; and that _____________ is now in possession of such real estate and claims title to the same by virtue of such tax deed, or such purported tax title.
"Any person claiming any right, title, or interest in or to such real estate adverse to the title or purported title by virtue of such tax deed referred to herein shall file a claim of the same with the recorder of the county wherein such real estate is located, within one hundred twenty days after the filing of this affidavit, such claim to set forth the nature thereof, also the time and manner in which such interest was acquired.
___________________________
"Subscribed and sworn to before me this _____________ day of ____, 19 __.
___________________________
Notary Public in and for __________ County, Iowa"
"
Dissenting Opinion
I respectfully dissent from so much of the majority opinion (Division I) as holds the so-called affidavit by the county auditor is in substantially the form required by section
The statutory form contains a jurat. The so-called affidavit here contains only an acknowledgment. There is no showing the auditor was sworn except his own self-serving statement in the body of the affidavit. This is like an attempt of someone to lift himself by his bootstraps.
The principal authority for the majority's holding on this point is Dalbey Bros. Lbr. Co. v. Crispin,
We have always required rather strict compliance with the essential provisions of statute in the acquisition of tax titles. It is not too much to require that one who wants to claim the benefit of sections
I would hold appellee is entitled to no relief under sections
OLIVER, J., joins in this dissent.