Harper v. Sexton

Cole, J.

We do not feel called upon to pass upon the question of fact determined by the District Court, to wit: as to whether there was actual fraud in the sale of the plaintiffs’ land for taxes, as claimed by the petition; and this for the reason that the judgment must bo affirmed upon another and very clear principle of equity and rule of equity practice.

1. Tax sales: defective deed. The tax deed in this case is the same in substance as the deeds in the case of Boardman v. Bourne ( 20 Iowa, 134 ), and in Byam v. Cook (21 Id.), and almost identical in language with the latter. For the reasons stated in the first named case, which were approved and followed in the last, both being well-considered cases, the tax deed under which defendants claim is void upon its face, and cannot, of itself, be any evidence of a right or title in them.

2. Equity: specific performance. The relief asked by the defendants, to wit: that the treasurer execute a deed to them pursuant to the contract of tax sale, is in the nature of asking a court of equity to decree a specific performance. It is doubtless true, that the relief asked by defendants in this case, as against the treasurer, might, in a proper and clear case, be obtained by a proceeding in mandamus (Blackwell on Tax Titles [1st ed.], 440), or possibly by suit in equity. Grum, Treasurer, v. Gotting et al., decided at the present term.

It is a general rule that courts of equity will decree a specific performance when the contract is in writing, is certain, is fair in all its parts, is for an adequate consider *446 ation, and is capable of being peformed, but not otherwise. Story’s Eq., § 751. It is also equally a general rule that courts of equity will not interfere to decree a specific performance except in cases where it would be strictly equitable to make such a decree. Story’s Eq., § 750. Nor will a court of equity decree such performance where the contract is founded in fraud, imposition, mistake, undue advantage or gross misapprehension; or where, from a change of circumstances or otherwise, it would be unconscientious to enforce it. Id., § 750, a.

3. Tax sale: cross petition against treasurer. Although the proofs in this case do not satisfy us, as they did the learned judge who tried the cause in the District Court, that there was actual fraud in the tax sale; yetj in view of the well-settled rule, that the finding of the court upon a question of fact, like the verdict of a jury, ought not to be disturbed unless clearly against the weight of evidence, perhaps we ought not to disturb such finding. But without passing upon this question of fact, we place our affirmance upon the well-settled equity rules stated sufra. In our view, it would not be strictly equitable to compel a conveyance of the plaintiffs’ real estate to the defendants, for the consideration of three dollars and forty-six cents, the amount of the legal taxes bid and paid by defendants. This want of equity is made more intensely apparent by the fact that the amount bid by defendants was nearly three times this amount, and the excess of which, over the legal tax, can doubtless be recovered by them from the county treasury under section 762 of the Revision. To enforce a specific conveyance of plaintiffs’ real estate for a consideration so clearly inadequate, and that, too, for a little over one-third of the amount the defendants, by their bid, agreed to pay, would be an abuse of our equitable discretion. as well as violative of the well-settled equity rules above stated.

*447 We do not pass upon the effect of the Revision (§ 762), on a tax sale made for an amount largely more than the legal tax, as developed by the facts in this case; but affirm the judgment upon the single ground above stated.

Affirmed.