83 Iowa 17 | Iowa | 1891
In 1860 one Sanford brought an action in attachment against Eliza Spicer, to whom a life-estate in the lands had been devised as above recited, and caused her interest to be levied upon. A judgment was recovered in the action, and the lands were sold in 1860 to William Graham, who assigned the sheriff’s certificate to Van Horn, and a sheriff’s deed was made to him for the land, June 5, 1865. Van Horn conveyed the land
II. The title and interest acquired by Van Horn,, through his purchase at the sheriff’s sale under the-Sanford judgment, was of a life-estate, and nothing more. The life-measuring duration of that estate has ended, and the remainderman or the reversioner takes, the estate, and now holds it as though there fiad been-no life-estate, which now cuts no figure in the case, further than as constituting a support for the allegations of fraud committed by Van Horn in failing to pay the taxes, and in acquiring a tax title while he had the-life-estate. But these charges of fraud can only be made as to the last of those tax deeds and sales. The-first was made before he purchased the sheriff’s certificate of sale of the land. The effect of the fraud upon the tax title under the first deed we shall presently consider. We shall have no occasion to further consider the life-estate at one time held in the land.
III. We come now to the consideration of the decisive point in the case, which involves the tax title-acquired by Van Horn under the tax sale of 1861. The-sale and deed are regular, and it is not' claimed that there was no assessment and levy of the taxes, or -that the taxes had been paid. The proceedings leading to-the sale, the sale itself, and the deed are not complained of; but it is alleged that the sale and deed are void because of the fraud of Van Horn in suffering the land to go to sale while he was Mrs. Spicer’s agent, and had
IY. We shall now consider the effect of the alleged fraud in the acquisition of the tax titles. Under the prior rulings of this court, the statute of limitations provided by Code, section 902, is not arrested by reason of fraud of this character. If there is no sale, no notice of the expiration of the right to redeem, required by Code, section 894, no assessment or levy of the tax, or the tax has been paid, or for any other reason there existed no power or jurisdiction to sell the land for taxes, the sale is absolutely void, and a tax deed may be assailed on these' grounds after the period of limitations prescribed by Code, section 902. Case v. Albee, 28 Iowa, 277; Hillyer v. Farneman, 65 Iowa, 227; Wilson v. Russell, 73 Iowa, 395; Early v. Whittingham, 43 Iowa, 162; Nichols v. McGlathery, 43 Iowa, 189; Code, sec. 897; Patton v. Luther, 47 Iowa, 236. But if the tax proceedings, assessment, levy and sale are irregular, voidable only, as in the case of sales of two or more tracts together for a gross sum, the failure to make entry of the delinquency of prior years and the like, or in any case there existed the jurisdiction or power to sell, which was irregularly or defectively exercised, the limitations of section 902 can be pleaded. Thomas v. Stickle, 32 Iowa, 71; Peirce v. Weare, 41 Iowa, 378; Bullis v. Marsh, 56 Iowa, 747; Griffin v. Bruce, 73 Iowa, 126; Monk v. Corbin, 58 Iowa, 503.
Y. It may be assumed that the fraudulent acts complained of by the defendants in the cross-bill are established by the evidence that Yan Horn was the agent of Mrs. Spicer, and did have her money in his hands at the time of the acquisition of the tax title sufficient to pay the taxes, and in other respects acted fraudulently, all of which was known to the plaintiffs. Code, section 897, declares that, if fraud of the pur
The decree of the court below is, therefore, AEEIRMED.