Parriott v. Incorporated City of Hampton

Ladd, J.

*161

1 Town plats: dedication of streets: acceptance.

*160 The plat was filed in 1891, so that but 13 years had elapsed at the time the defendant town indicated *161 its purpose to accept the remaining streets inclosed with blocks 6, 7, 8, and 9 as a pasture. The inteation 1° do s0 as soon as these were needed was shown by the opening to the public of the streets north of Eleventh street long before if the plat was legal. Village of Lee v. Harris, 206 Ill. 428 ( 69 N. E. 230 , 99 Am. St. Rep. 176 ). The mere fact of inclosure by an ordinary fence, did not estop the town from accepting the streets when ready to improve them, for such use was not inconsistent with the purpose to dedicate. Hntil acceptance, the owner was entitled to the beneficial use of the property, and, unless the improvements are inconsistent with the intent to dedicate, the city or town will not be deemed to have abandoned its right to acquire the land set apart for streets whenever it may elect so to do. Burroughs v. Cherokee, 134 Iowa, 429 . The town plainly indicated its acceptance of the dedication by notice to plaintiff that it would open the streets, and, in attempting to enjoin it from exercising the right to accept by opening and improving such streets, she is in no position to contend they have not been previously accepted. The statute points out the method to be pursued by a proprietor who wishes to vacate a plat, and this may not be accomplished by merely insisting that there has not been a platting of the ground, or that if platted it has not been accepted, or that it has in fact been withdrawn or abandoned. These matters relate to conditions actually effected, and not to the municipality’s right to accept at the present or in the future. Of course, there must be an acceptance before the incorporated town may insist upon its right to use the streets. This may be indicated by an incorporated town in any unequivocal manner, such as the improvement of the streets, or by notice to the proprietor that it will open and improve them. See Burroughs v. City of Cherokee, supra.

*162

2. Defective: aknowledgements: curative act.

*161 The record clearly establishes the town’s right to the streets, if the statute was so. followed in platting the ground as that such streets were dedicated to the public use. The *162 plat substantially complied with the requirements of the statute, and was filed June 10, 1901. See Coe College v. Cedar Rapids, 120 Iowa, 541 . The acknowledgment thereof was defective, in that the notary public taking it did not certify that Kennedy and his wife were the identical persons then before the notary or those whose names were subscribed, and that they acknowledged the same to be their voluntary act and deed, though possibly something equivalent to this last. Also, the notarial seal was omitted. See Stephens v. Williams, 46 Iowa, 540 . Sections 560, 1963, Code 1873. But a form of acknowledgment was attached to the instrument by an officer purporting to have authority to take acknowledgments, and it is well settled that ordinarily such defects may be cured by subsequent legislation. Section 1967 of the Code of 1873, as amended by chapter 42, of the Acts of the Twenty-Fourth General Assembly, provided: “ That the acknowledgments of all deeds, mortgages, or other instruments in writing, taken and certified previous to the first day of February, 1892, and which have been duly recorded in the proper counties in this State, be and the same are hereby declared to be legal and valid in all the courts of law and equity in this State or elsewhere, anything in the laws of the Territory or State of Iowa in regard to acknowledgments to the contrary notwithstanding.” “ Duly recorded ” as here used means actually recorded. Brinton v. Seevers, 12 Iowa, 389 . In Bresser v. Saarman, 112 Iowa, 720 , an acknowledgment of adoption papers before a justice of the peace, unaccompanied by a certificate under official seal of the proper officer certifying to the official character of the justice, his authority to take acknowledgments, and the genuineness of his signature, as required by statute, was held to have been validated by this act. See, also, Ferguson v. Williams, 58 Iowa, 717 ; Buckley v. Early, 72 Iowa, 289 ; Collins v. Valleau, 79 Iowa, 626 . The absence of seal has repeatedly been held cured by such a statute *163 in other jurisdictions. Williams v. Ass’n, 79 Wis. 524 ( 48 N. W. 665 ) ; Kenyon v. Knipe, 2 Wash. T. 422 ( 7 Pac. 854 ) ; Tidd v. Bines, 26 Minn. 201 ( 2 N. W. 497 ) ; Waters v. Spofford, 58 Tex. 115 ; Maxey v. Wise, 25 Ind. 1 . And, in Baker v. Woodward, 12 Or. 3 ( 6 Pac. 173 ), the acknowledgment held to have been cured did not certify that the grantor was known to the notary. Others may be found holding the lack of authority to take an acknowledgment or omission to show such authority is remedied by a curative act.- Bryan v. Bryan, 62 Ark. 79 ( 34 S. W. 260 ) ; Apel v. Kelsey, 47 Ark. 413 ( 2 S. W. 102 ) ; Wallace v. Moody, 26 Cal. 387 ; Logan v. Williams, 76 HI. 176. See cases collected in 1 Cyc. 612.

The above statute is broad in its terms, and, while it does not purport to supply an acknowledgment entirely omitted, it does undertake to cure all defects short of so supplying such omission. It is urged, however, that, as the acknowledgment of a plat is made by the statute essential to the conveyance of the title in the streets to the municipality, the curative act has no application. Language to this effect will be found in Goodykoontz v. Olsen, 54 Iowa, 174 , where the court held the acknowledgment of a tax deed to be a part of its execution by the county treasurer. Under the Revision 1860, section 784, such deed did not constitute a conveyance until the officer had acknowledged it, and the owner might not be divested of his property through tax sale in any other way. But subdivisions of land may be disposed of without platting, and the public be invested with title in the streets by dedication otherwise than platting. See section 568, Code 1873. The platting and recording is largely a matter of convenience in the matter of transfers, taxation, and the like (Brown v. Tabor, 103 Iowa, 1 ), and even though section 561, Code 1873, does declare that “ The acknowledgment of such plat is equivalent to a deed in fee simple of such portion of the premises platted as is on such plat set apart for streets or other public use,” the title to such *164 streets does not pass -until acceptance by the municipality. Burroughs v. City of Cherokee, supra. Acknowledgment of the plat was essential to its validity. Gould v. Howe, 131 Ill. 490 ( 23 N. E. 602 ); Armstrong v. Topeka, 36 Kan. 432 ( 13 Pac. 843 ).

„3. Streets: open-mg of same: injunction. But when acknowledgment is effectual through a curative act prior to the acceptance of the streets, and there are no intervening equities, the title to the ground so set apart will thereupon vest in the town or city. Such w as the conclusion of this court in Bresser v. Saarman, supra, for adoptive papers do not become effective until acknowledged and filed for record. In this case the curative act went into effect in 1892, shortly after Kennedy had conveyed the platted ground to Gray. That conveyance distinctly recognized the plat by describing the several blocks therein, and Gray conveyed in the same way to Bailey in 1901. These parties, then, were not only advised of the existence of the plat, but recognized and adopted it in transferring the property. In these circumstances, it is manifest that the plat became effective upon the adoption of the curative act, for, though up to that time the attempt to plat had not been effective, the act healed the defect in the acknowledgment and the plat was then acknowledged and recorded as required by law. The plat as thus made harmonized with the conveyance previously made to Gray and subsequently by him to Bailey and others.

True the land was also otherwise described in these deeds, but this does not militate against the inferences to be drawn from their recitals. The plaintiff traces .her title through these deeds, but not necessarily through the description by blocks, save possibly that of Gray. See Quinnin v. Reimers, 46 Mich. 605 ( 10 N. W. 35 ), and Johnstone v. Scott, 11 Mich. 232 , holding that, if both parties claim through a plat, its validity becomes immaterial. The plat was an instrument in writing, within the meaning of the curative act (Williams v. Milwaukee, etc., Ass'n, 79 *165 Wis. 524 ( 48 N. W. 665 ), and, in the circumstances disclosed, we are inclined to uphold the validity of the plat.

The decree dismissing the plaintiff’s petition is affirmed.