Eldridge v. Kuehl

Cole, J.

l. tax sake : authorizedby1 law‘ I. The plaintiff introduced in evidence the patent from the United States, together with conveyances showing title in himself, and then rested his ease. The defendant then offered in evidence a treasurer’s tax deed, dated December 6,1864, from John Collins, treasurer of Scott county, to, Austin Corbin, the defendant’s grantor, purporting to convey the land in controversy, which deed was filed for record the same day and duly recorded. This deed was in the precise form prescribed by Rev. § 783, but it stated that the sale was begun and publicly held on the first Monday of December, A. D. 1861, instead of the first Monday in October, as provided by section 763; it also showed the sale of the whole eighty acres, now in controversy, together in the lump.

The plaintiff objected to the introduction of this deed, because, first, the said deed is void upon its face, in that it appears by the deed that the sale wns made at a time not authorized by law; second, the deed shows upon its face the sale in gross of eighty acres of land; third, the deed is not admissible in evidence until proof has been made of the several steps required by the law to be taken before the sale, and necessary to the exercise of the taxing *170 power and to tbe execution of the powers conferred by the law upon the officers. But the objections were overruled by the court and the deed admitted. The plaintiff' duly excepted, and now assigns error thereon.

The first ground of objection is, that the deed shows the sale was made at a time not authorized by law. This objection is not well founded. It is true that Revision, section 763 provides that on the first Monday of October in the year 1860, and in each year thereafter, the county treasurer is required to offer at public sale, etc., all lands, etc., upon which the taxes are delinquent. But section 776 provides that if, from neglect of officers to make returns, or from any other good cause, real property cannot be duly advertised and offered for sale on the first Monday of October, it shall be the duty of the treasurer to make the sale on the first Monday of the next succeeding month in which it can be made, allowing time for the publication, etc. The sale was made, therefore, at a time authorized bylaw. This objection is not that the facts authorizing the sale at a time other than the first Monday in October were not shown by recital or proof, but that it was at a time not authorized by law. 'As we have already seen, the statute did authorize the sale at the time it was made.

2. —of tracts greater than forty acres. As to the second ground of objection, that the deed shows upon its face the sale in gross of eighty acres of land, we need only remark that such a sale _ has been held good, where the land is listed and assessed to an owner. Corbin v. De Wolf, 25 Iowa, 124 . Such a sale being rightful and proper in cer tain cases, and nothing appearing to show it improper in this case, this objection was properly overruled.

The third objection, as above stated, is based upon this reasoning, to wit: so much of section 784:, as declares the treasurer’s deed conclusive evidence that all the prerequisites of the law to make a good and valid sale, and *171 vest tlie title in the purchaser, were done, except as to the three particulars of the liability of the land to taxation, the non-payment of taxes and the non-redemption from sale, is unconstitutional and void; that the declaration that the deed shall be “ conclusive evidence ” being inoperative, and there being no statutory declaration that it shall be grima facie evidence, the deed stands as at common law, and proof must first be made of the facts authorizing it before the deed itself can be introduced.

One member of the court (Wright, J.) was necessarily absent during the argument of this case; and as the decision of the constitutional question as made is not absolutely necessary in order to the disposition of the case, we forbear any expression of opinion thereon. In' so doing, we follow the rule in such cases, as laid down in McClure v. Owen ( 21 Iowa, 133 ), and the authorities there cited.

The statute itself makes the deed grima facie evidence of certain facts; and since the deed was competent to prove these, it was not error to admit it. See Allen v. Armstrong, 16 Iowa, 508 .

3_miscon-chaser:*evidence. II. The plaintiff introduced a witness and offered to prove by him that, at the sale recited in' the treasurer’s dee<3> the said Austin Corbin, the purchaser at said sale, by his conduct prevented competition with him by the bidders present in reference to many pieces of land bid for by him, etc., etc. To this evidence the defendant objected because it was immaterial, and excluded by limitation and by the conclusiveness of the tax deed; which objections were sustained and the evidence excluded. This ruling is now assigned as error.

There was no error in excluding the evidence on the ground of immateriality. It was wholly immaterial as to what arrangements the purchaser of the tract of land *172 in controversy may have made “in reference to many pieces of land,” unless his arrangements or conduct extended to the tract in controversy; and there was no offer to connect it with that piece in any way whatever. Whether such defense, even if it was connected with this particular piece of land, could be made as against a bona fide grantee for value, and without notice of it, may well be questioned. But it is not necessary to decide that point in this case.

e.— error in ania taxes. III. The plaintiff then offered the return of the assessor for the township, showing that while the land was assessed at $560 it was taxed at the rate of $616; and also offered the collector’s book, showing that part of the tax for which the land was sold was a “ railroad tax,” to levy which there was no authority of law, the bonds and coupons being void, and that a part was for a “ district tax,” not levied according to law, and that the tax was computed on the value of $616, instead of its assessed value, $560 ; and also offered in evidence the “minute book” from the county judge’s office to show the same facts. To the introduction of each of which the defendant objected for the same reasons as above stated, and the court sustained the objections and excluded the evidence. To which ruling the defendant excepted, and now assigns the same ás error.

The alleged error in assessment was immaterial, since it could not affect the title conveyed by the treasurer’s deed. It is expressly provided by section 753 that no irregularity, error or omission in the assessment shall affect in any manner the legality of the taxes levied thereon, or the right or title of any real property sold for the non-payment of taxes, etc. So also of the offered proof as to the illegal and improper taxes. Section 762 provides for the correction of illegal and erroneous taxes, *173 and also tliat a sale for any such shall not affect the title conveyed by the treasurer’s deed, provided any portion of the taxes for which the land was sold was legal.

6. btaxv*, » wiSntt commenees to mu. IT. The only remaining question arises upon the statute of limitations embraced in the revenue law. “ Section 79°- action for the recoveiy of real propei’ty> sold f°r the non-payment of taxes, shall ]q6) unless the same be brought within five years after the date of the sale thereof for taxes as aforesaid (anything in the statute of limitations to the contrary notwithstanding); provided, that when the owner or owners of such real property sold as aforesaid shall, at the time of such sale, be minor or minors, or insane, five years after such disability is removed shall be allowed such person or persons, their heirs or legal representatives, to bring their suit or action for recovery of the real property so sold.” This section is substantially a copy of the Pennsylvania statute of April, 1804, which is copied in the opinion of the court in the case of Waln v. Shearman, 8 Serg. & Rawle, 357 .

The District Court held, in this case, that the statute began to run from the date the treasurer struck off the„ land to the bidder therefor, and that more than five years having elapsed since said date, the plaintiff could not maintain the action.

The word “ sale ” is defined by Bouvier in his law dictionary to be “ an agreement by which one of the contracting parties, called the seller, gives a thing and passes the title to it, in exchange for a certain price in current money, to the other party, who is called the buyer or purchaser; who, on his part, agrees to pay such price.” Any thing short of passing the title is but an agreement to sell; but, while this is the strict legal or technical meaning of the word “ sale,” it is evident that the word is used a great number of times in our revenue act, in a *174 more liberal and general sense, and is applied to the act of striking off the property by the treasurer to the bidder. Indeed, our attention has not been called to a single instance in the entire statute where it is used in any other than such liberal and general sense, unless it be in the section on limitation, as above quoted.

In order to justify giving to that word, then, a different meaning in this section from what it manifestly has in the other sections, we must have some strong and overruling necessity, or a plain and manifest intent, to use it in such different sense.

All statutes of limitations must proceed on the idea that the party has had opportunity to try his right in the courts. Cooley on Const. Lim. 366.

The striking off of the real estate to the highest bidder, and the giving to him a certificate of purchase thereof, does not invest him with any title to or interest in such real estate, but simply a lien upon it for the taxes, interest, costs, penalties, etc. Williams v. Heath, 22 Iowa, 519 . No ordinary action, for the recovery of such real property, could therefore be brought against the holder of such certificate. Eev. § 3569. Nor, indeed, could the owner know who was the holder and owner of such certificate at any time after its delivery, for they are assignable, and such assignment vests the assignee with all the rights of the original purchaser. §778. This condition of affairs must continue for three years; for, until then, the purchaser has no right to any thing else evidencing his interest, except the certificate, and it may be assigned to a new owner each successive day or oftener. Not only so, but the purchaser or holder of the certificate need not then apply for or receive his deed ; it is the duty of the officer (clerk) to deliver the deed “ upon the return of the certificate.” § 781. The purchaser or holder of the certificate may therefore keep it in his own *175 pocket until the five years have elapsed, and then return it and take his deed. No prejudice to the holder of the certificate can result to him by the delay ; and, if he sees fit thus to delay, he could thereby deprive the owner of his property by the mere limitation and without an opportunity to try his rights in the courts.” It follows, therefore, if there is no other section than 3569 authorizing an “ action for the recovery of real property,” that the section limiting the action to “ five years from the day of sale ” would be unconstitutional, for that it would or might deny to the owner an opportunity to try his right in the courts,” unless the word “ sale,” as therein used, means a completed sale; that is, a conveyance of the title. In other words, if the five years runs from the day the real estate is struck off to the bidder, the owner would be barred his action before any title would be vested in another, and that, too, without any right of action before the bar attached. Such a construction ought not to be adopted, because it would make the statute of limitation both unjust and unconstitutional. These results can be avoided by holding that the word “ sale ” is used in its legal sense. Thus construing the statute, it would give to the owner five years from the delivery and recording of the deed whereby the title becomes vested in the purchaser, in which to bring his action. This is a reasonable construction of the language used, and avoids the unjust and unconstitutional results above specified. These may be properly called strong and overruling reasons for giving to the word “ sale,” in the section quoted, a meaning different from that which it manifestly has in other sections.

But, it is argued, that our statute does give another remedy for the recovery of real property than that provided in section 3569. ¥e are referred, first, to another section in the same chapter (144), and which is entitled *176 “Actions for the recovery of real property.” “ Section 3601. An action in the nature of that .authorized in this chapter may also be brought by one having a reversionary interest, or by one either in or out of possession, against another who claims title to real projserty, although the defendant may not be in possession thereof, for the purpose of determining and quieting the question of title.” But it will be seen that this section only authorizes the action “ against another who claims title to real property.” The holder of a certificate does not “ claim title.” Williams v. Heath, supra. And, therefore, the holder of the certificate may delay talcing his deed for -/the five years, and thereby in like manner defeat any action by the owner under this section, which was evij- dently intended to authorize the testing, by action, of the . . legal title, regardless of the fact of possession. So also ’---•of the next section, which is also incidentally referred to as giving a right of action. But it will be seen that the action therein provided, while it is broad and general as to who may be defendants, yet it can only be brought where, and 11 if the plaintiff is in possession.” Hence, we conclude that no other “ action for the recovery of real property” is provided for such cases than by section 3569.

Our statute of limitations, as has been remarked, was borrowed from, or is substantially a copy of, the Penn, sylvania statute. Where a statute is thus borrowed and adopted, the construction of it by the courts of the State from which it was borrowed will also be adopted. Campbell v. Quinlan, 3 Scam. 288 ; Adams v. Field, 21 Vt. 265 ; Rigg v. Walton, 13 Ill. 16 ; The State v. Rowley, 12 Conn. 101 . In Waln v. Shearman ( 8 Serg. & Rawle, 357 , supra), the Supreme Court of Pennsylvania held that the statute only commenced to run from the time possession was tahen under the tax deed; and this, because no action could be brought for the recovery of real *177 property in that State, except against a party in possession. Afterward, and in 1821, the legislature authorized an action to be brought against a claimant though not in possession. The Supreme Court of Pennsylvania then held that the statute began to run when the treasurer’s deed was delivered. Robb v. Bowen 9 Penn. St. 71. Under neither statute, do they hold that it begun to run from the day of sale, or striking off to the bidder; but only from the delivery of the deed. ITnder our statute, the title does not vest in the purchaser until the deed is “ executed and recorded in the proper record of titles.” § 785. When that is done, and not till then, will the^*" statute begin to run. In other' words, we hold tl^t^hy^' “ five years from the day of sale,” means a com/pleU#y — sale, which vests the title in the purchaser.

The District Court held that the statute of. limitations commenced to run from the day of sale or striking ofi^ by the treasurer; and thus holding, refused an instruction asked by the defendant that the statute did not commence to run till the deed was duly delivered, etc., and instructed them that the tax deed was valid and binding, and conveyed the title to the grantee therein. As we have seen, this was error. The judgment of the District Court is

Eeversed.