31 F. 249 | U.S. Circuit Court for the District of Northern Iowa | 1887
In this cause the complainant seeks to redeem certain realty situated in Dickinson county, Iowa, from a tax sale made October 2, 1876, for the delinquent taxes of 1875, the bill herein being filed under section 893 of the Code of Iowa. By section 897 of the Code it is provided that “no .person shall be permitted to question the title acquired by a treasurer’s deed without first showing that he, or the person under whom he claims title, had title to the property at the time of the sale, or that the title was obtained from the United States or this state after the sale.” The first question presented for determination is whether complainant shows himself entitled to question the treasurer’s deed to defendant under the provisions of this section. The land in controversy
In Rice v. Nelson, 27 Iowa, 118, it is held that “any right which, in law or equity, amounts to ownership in the Jand, any right of entry upon it, to its possession, or the enjoyment of any part of it which can he deemed ail estate, makes an owner of it, so far as it is necessary to give the right to redeem;” and in Foster v. Bowman, 55 Iowa, 237, 7 N. W. Rep. 513, it is said: “The statutes providing for redemption from tax sales should he liberally construed.”
In the case at bar it is shown that in 1874 the title to the lands in controversy was perfected in the state of Iowa, and in Dickinson county, which then for the first time became clothed with the right and power to sell the same; that in November, 1874, the county conveyed the land to Barkman, and in .1875 he conveyed same to Lambertson, who in time conveyed to Nichols, the immediate grantor of complainant. Thus we have a perfect, and unbroken chain of conveyances from the slate and county to complainant.
It does not appear that Brewster or his grantees ever claimed any interest in the lands, and it certainly would be going to an extreme length to hold that when Barkmán, in 1874, procured the title of these lands from the county, his title at once passed to Brewster by reason of the deed executed in 1861, although the latter made no claim to the land under such deed. All that can be claimed is that perhaps, if Brewster or his grantees had asserted a right to the land, they might have sustained the same; but such possibility should not be held sufficient to overcome the evidence of direct title offered on behalf of complainant, and to defeat his right to redeem. Certainly complainant has a good title, unless a claim should be asserted under the conveyance to -Brewster. Even if complainant had not procured the quitclaim from Sigley, there is nothing to show that any adverse claim would ever have been made by Sigley to the land; so that it cannot be held that complainant and his grantees did not have sufficient interest to entitle him to redeem.
Sufficient title and ownership in the land to entitle him to be heard upon the question of the right of redemption having then been shown in complainant, we are brought to the consideration of the effect of a decree rendered in the case of Van Steenberg v. Nichols and, Sigley, brought to the September term, 1880, of the district court of Dickinson county, for the purpose of quieting the title of complainant in the land in question. The defendant Nichols was a non-resident of the state of Iowa, and the
The sale for taxes under which defendant claims title was made in 1876. Section 894 of tho Code of Iowa provides that, after the expiration of two years and nine months from date of sale, the holder of the certificate of sale shall give notice of the expiration of the period of redemption; that, in case of non-residents of the county, service of such notice may be made by publication; that service of such notice shall be deemed to bo complete when an affidavit of such service, and of the mode thereof, verified by the holder of the certificate of sale, his agent or attorney, is filed with the treasurer; and the right to redeem shall not expire until 90 days after service of such notice. As construed by the supreme court of Iowa, the 90 days allowed for redemption under this section of the statute does not begin to run until proper evidence of service of notice is filed with the treasurer, and an affidavit of publication by the publisher of a newspaper is held net sufficient evidence of service, as the section expressly requires the affidavit to bo made by the holder of tho certificate of sale, his agent or attorney. American Missionary Ass’n v. Smith, 59 Iowa, 704, 13 N. W. Rep. 849; Ellsworth v. Van Ort, 25 N. W. Rep. 142.
It is admitted in this case that tho only proof of the service of notice to redeem, filed with the treasurer of the county in 1879, when the deed of that date was issued, was an affidavit by the publisher of the Beacon newspaper. The treasurer was not authorized to execute the deed, and the right to redeem was not terminated by the issuance thereof. The petition in the present case was filed in August, 1888, before the expiration of five years from the delivery of the deed, and before the period of 90 days had baen set to running against complainant.
Tho fact that in January, 1884, the defendant filed with the treasurer an affidavit in due form, showing completed service of the notice to redeem, .and in April, 1884, obtained a second treasurer’s deed, cannot avail him as a defense. He then know that complainant was claiming the right to redeem, and had brought an action to establish such right, and stood ready to pay whatever sum was needed to perfect redemption. Before the suit was brought, the complainant’s agent and attorney had called on defendant, and offered to redeem the land, being prepared to make a formal tender; hut the defendant refused to allow redemption, or to state the amount he claimed to be due, saying he would not allow redemption unless the courts compelled it, etc. Complainant had also, before bringing suit, made a tender to the auditor of tho county, who
He cannot now be permitted to take advantage of the fact that he has procured a second deed from the treasurer under the circumstances disclosed in the evidence. The amount deposited with the clerk by complainant is, as I understand the record, the sum of $98.20, which is sufficient to cover the amount for taxes, penalties, etc. Decree therefore is ordered for complainant, the defendant being entitled to the money on deposit; and the total costs, both in state and federal courts, will be equally divided, each party paying one-half.