Ware v. Thompson

29 Iowa 65 | Iowa | 1870

Wright, J.

i. tax sale en masse. It becomes material to state with some particularity the averments of the petition.. ■ Plaintiffs, in May, 1868, obtained from the owner in fee the title to an undivided half of the S. \ of section, etc., and are still the owners thereof. In April, 1862, the county treasurer sold said premises for the delinquent taxes of 1860, to defendant, etc. This sale was illegal, etc., in this : “the said treasurer offered for sale at one time, and did sell, the whole of the S. E. | of said section, etc. ; and the said treasurer at the same time and place offered for sale, and did sell, the whole of the S. W. | of said section, etc., which said quarter sections include the undivided half of the' S. \ of said section, etc. ; said quarter section, includes four distinct and legal subdivisions of land forty acres each, and said land was not sold in the smallest legal subdivisions thereof, as required by law, but was sold en masse, as aforesaid.” ■

It is then stated, that in May, 1865, the treasurer executed to the purchaser a deed, purporting to convey the undivided half of each of said quarter sections, which deed is void in this : ■ “ That it shows on its face that several distinct tracts or parcels of land were sold together for a gross sum, and the said deed purports to convey the said several distinct tracts or parcels for the gross sum of, etc., being the whole amount of tax, interest and costs then remaining due and unpaid on all of said several distinct tracts or legal subdivisions of land together.” By the deed, a copy of which is attached tó and made a part of the petition, it is made to appear that the treasurer did sell about six hundred acres of land located in different sections and townships, for, etc., “ being the whole amount of taxes, interest and costs then due and remaining Unpaid on said property.”

This judgment must of course be affirmed, so far as it directs the tax deed to be set aside. It was clearly irregularly and improperly issued, is void, is a cloud upon plaintiff’s title, and should be so declared. This conclusion we rest upon the authority of Boardman v. Bourne, 20 Iowa, 134, and the many cases following, which hold that a tax deed is void which shows upon its face that several tracts of land were sold togther for a gross sum — this being a clear violation of the statute. See Ackley v. Sexton, 24 id. 320; Ferguson v. Heath, 21 id. 438, and cases there cited.

^exceeding0*3 forty acres. As to that part of the judgment which set aside the tax sale, our opinion is that the court below erred. This is plain enough, in view of what was ruled in Corbin v. DeWolf, 25 Iowa, 124, and followed; . „ „ , . . , , . _ . „ m Stewart v. Corbin, in. 144. JB or, by these cases, it was held that land may be sold for taxes in tracts greater than forty acres, when so assessed; that, while, subdivisions that are assessed separately, or are in fact distinct, cannot be sold in gross, yet a subdivision, though greater than the sixteenth of a section, when so assessed, may be sold in a body. And this is especially so of lands assessed to known owners. Rev. §§ 737, 745, 764.

The pleader in the case before us fails to state whether the owner of this land was “known” or “unknown.” Nor is it stated that these quarter sections were assessed or advertised in forty or eighty acre tracts ; nor that they were thus subdivided. In fact, so far as appears from the petition, the land was sold in a body, just as it was subdivided in the assessment, and not otherwise.

3_effect of -s-oid deed, To avoid the effect of the rules thus stated, appellees insist that a fair construction of the pleading shows that iw0 CLuarler sections were sold in gross,being distinct and separate parcels. This is, however, not warranted by the language of the pleader. The averment is, that the officer sold the whole of a quarter section, and not that he sold together, or under the same bid, the whole half section. Than this, few things could be plainer.

The attempt to connect with this part of the petition-what is said in a subsequent clause, in relation to the tax deed, is equally without warrant. The- averments there made are for the purpose of showing that the deed is void, and this, not because these tracts were sold together, but because they, with more than four hundred other acres, were sold in “a lump,” or in gross. It is not alleged that the sale was made as in said deed recited. The conveyance itself might be void upon.its face, because of these recitals ; but unless it appears that the land was thus sold, the sale itself would not be thereby invalidated.

To this extent, therefore, the demurrer was improperly overruled. It by no means follows, however, that defendants are entitled, as counsel claim, to final judgment in this court. Plaintiffs have the right to amend, if they so desire. It is defendants, not plaintiffs, who stand by their demurrer. If this had been sustained, plaintiffs could have amended in the court below, and this they may still do. If it had been sustained and plaintiffs had refused to amend, an affirmance of that order here might have justified the order which defendants now ask. Not so, however, under the circumstances of this case.

The practice upon this subject was indicated as long ago as 1855. Pierson v. David, 1 Iowa, 35. And from it there has been no departure. The case of Cowles v. Gray, 14 id. 1, cited by appellants, is far from favoring their position.

Reversed, and remanded with leave to plead anew, if the parties shall be so advised.

Reversed.