Carter v. Cemansky

Decision Date09 February 1905
Citation102 N.W. 438,126 Iowa 506
PartiesCARTER v. CEMANSKY.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Woodbury County; George W. Wakefield, Judge.

Suit in equity to quiet plaintiff's title to a certain lot in the city of Sioux City, as against defendant's claim under a certificate of purchase of the same at tax sale. Defendant filed an answer and cross-bill asserting the validity of his certificate, and making claim for subsequent taxes paid by him on the lot. He also asked that, if the certificate be declared invalid, he be given an equitable lien upon the property for the amount of the taxes paid by him. Plaintiff denied the validity of the taxes, and pleaded the illegality of the certificate of purchase. The case was tried to the court, resulting in a decree for the plaintiff, and defendant appeals. Affirmed.Shull & Farnsworth, for appellant.

F. B. Robinson, for appellee.

DEEMER, J.

From the year 1888 to 1892, inclusive, one Jandrey owned the lot above referred to. This lot abutted upon Twelfth street, in the city of Sioux City. During the time that Jandrey was the owner thereof, the city ordered this street, as well as another abutting upon the property, and also an alley in the rear thereof, graded and filled, and thereafter assessed against the lot something near $500, as its proportion of the expense of grading and filling Twelfth street. The taxes were made payable in five installments, and confirmed as a lien against the lot. Notice was given as by statute provided for proper street improvements, but Jandrey did not appear or make any objection to the work or to the assessment. An assessment of $20 was also made for grading the other streets. In 1892 Jandrey conveyed the lot to one Atwater, who took “subject to all special assessments.” Before conveying to Atwater, Jandrey had made a mortgage on the lot to a trust company. The trust company foreclosed this mortgage, and became the purchaser at the sale. It subsequently quitclaimed its interest in the lot to the Fidelity Land Company, “subject to all incumbrances of record,” and the land company conveyed the same to Statter. Statter, in turn, conveyed to the plaintiff. So that plaintiff traces his title through the foreclosure of the mortgage given by Jandrey. Some one paid two installments of these special assessments, but it does not appear that they were paid by Jandrey, or by any one through whom plaintiff traces title. Defendant's certificate included sidewalk taxes assessed against the property amounting to $12.90 (not including interest or penalty), and he also paid valid taxes amounting to something over $18. These taxes are conceded to be valid, and plaintiff alleges that on April 22, 1903, which was after defendant's cross-bill was filed, he tendered the amount thereof, and that he (defendant) refused to receive the same. He also averred a readiness to pay the same in the answer filed by him to the cross-petition, offered and tendered the same into court, and thereafter paid the amount thereof, with interest and penalty, to the county auditor. He also offered to pay the costs of this suit down to the time the tender was made. In the decree rendered by the trial court he was ordered to pay the costs in accord with the terms of his offer.

Defendant concedes that the grading tax was and is invalid, but he relies upon various technical matters to defeat plaintiff's action. Among other things, he says that, as plaintiff did not offer to pay the valid part of the tax at the time of or before he brought his suit, he cannot now be heard to question the certificate. True, plaintiff did not, when he brought his action and filed his petition, make this offer or tender; but,...

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