Barcroft v. Mann

• Decision Date: 15 November 1904
• Parties: SUSAN F. BARCROFT, RUSSELL A. BARCROFT, J. K. BARCROFT, HATTIE L. MCCAUGHAN, and MARY E. KING, Appellants, v. B. E. MANN and ANNA BELLE STRATHERN
• Court: Iowa Supreme Court

101 N.W. 276

125 Iowa 530

SUSAN F. BARCROFT, RUSSELL A. BARCROFT, J. K. BARCROFT, HATTIE L. MCCAUGHAN, and MARY E. KING, Appellants, v. B. E. MANN and ANNA BELLE STRATHERN

Supreme Court of Iowa, Des Moines

November 15, 1904

Appeal from Polk District Court.--HON. A. H. MCVEY, Judge.

ACTION to redeem lots 16 to 22, inclusive, in Mann's Addition to Auburn Heights, now included in the city of Des Moines, from tax sale and deed. The relief prayed was granted as to lots 17 and 18 only, and plaintiffs appeal.--Modified.

Modified and affirmed.

Clark & McLaughlin, for appellants.

C. C. & C. L. Nourse, for appellees.

OPINION

LADD, J.

The taxes on lots 16 to 22, inclusive, in Mann's Addition to Auburn Heights, now included in the city of Des Moines became delinquent, and, to satisfy the same, each lot was sold separately December 4, 1894, to L. M. Mann, and certificate of sale executed to him for each. These several certificates were assigned to the defendant B. E. Mann, to whom the treasurer of Polk county issued a deed February 2 1900, which was duly recorded shortly afterwards. Thereafter Mann conveyed the lots to the defendant Strathern. The tax deed is assailed as having been issued without proper notice or such service thereof as the law required. Lots 17 and 18 were taxed in the name of L. M. Mann, and lots 16, 19, 20, 21, and 22 in the name of James M. McCaughan. The notice was directed "to J. M. McCaughan" only, described all the lots, and stated "that the right of redemption will expire and a treasurer's deed for said lots will be made unless redemption from such sale be made within ninety days from the completed service of this notice." This was dated September 9, 1899, and indorsed thereon was the following: "I hereby accept due and legal service of the above notice. James M. McCaughan." A similar notice, directed "to occupant," was indorsed:

"I hereby accept due and legal notice of the above notice. J. C. Booton." To these was attached the affidavit of B. E. Mann, as owner of the certificates, "that the property described in the above notice is now taxed in the name of J. M. McCaughan and under my direction said notice was served on J. M. McCaughan, also on J. C. Booton, occupant, by their accepting service of the same on the 9th day of Sept. A. D. 1899, as appears on said notice."

Some of the contentions of appellant are settled by previous decisions of this court. Jenswold v. Doran, 77 Iowa 692, 42 N.W. 465; Stoddard v. Sloan, 65 Iowa 680, 22 N.W. 924.

The alleged defects in the notice to Booton, or in the service thereof, may be dismissed, as the record contains no evidence indicating the necessity of notice to him. As he was not the owner, it is not to be assumed, in the absence of any showing, that he was in the actual occupancy of the property.

The point mainly relied on is that the return of service does not show where or when the notice to McCaughan was served. Under section 894 of the Code of 1873, a statement of the place where was not essential; and the court, in Rowland v Brown, 75 Iowa 679, 37 N.W. 403, refused to...