Barke v. Early
| Decision Date | 29 June 1887 |
| Parties | BARKE v. EARLY AND OTHERS. (THREE CASES.) |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeals from district court, Sac county.
Actions in chancery to quiet the title of plaintiff to certain separate tracts of land, and to set aside tax deeds under which defendants claim title. The relief claimed in the different actions was allowed in the respective decrees thereon rendered, upon condition that plaintiff pay in each case the taxes paid by the respective defendants, together with the penalties, the same as if the taxes had never been paid, and were now to be paid to the county. The parties on both sides of the case appealed on the same day.Mason & Thomas and Cole, McVey & Clark, for plaintiff.
S. M. Ellwood, Ed. R. Duffie, and E. L. Green, for defendants.
1. The tax sales under which defendants claim title were made for delinquent taxes which were not carried forward upon the tax books of subsequent years, as required by Code, § 845. They are therefore invalid. Gardner v. Early, 28 N. W. Rep. 427. It is not denied that the tax titles relied upon by defendants are invalid, and cannot be enforced under this statute. But it is insisted by defendants that plaintiff's actions to set aside the tax deeds are barred by the limitation prescribed by Code, § 902, which limits actions to recover land sold for taxes after five years from the date of the execution of the treasurer's deed. The respective actions now before us were brought within this period of limitation; but, after the period had run, the plaintiff filed an amendment to the petition, in each case offering to pay defendants the amount legally due them on account of the taxes paid by plaintiff, and asking the court to determine such amount, and all questions connected therewith. The defendants insist that, by the filing of this amendment after the period of limitations had elapsed, the action became barred, the statute having run against plaintiff's cause of action.
The amendment in this case does not pertain to the cause of action so far that a new cause of action is presented thereby. It simply alleges facts supporting plaintiff's right to recover. The cause of action arises upon defendant's claim of title based upon the tax deed. Equity requires that plaintiff show an offer to do equity by the payment of the taxes, in order to entitle him to relief. The offer, then, pertains to the relief sought, not to the cause of action. Of course, the relief is dependent upon the cause of action and the rule of equity just referred to. While there is connection and relation between the offer and cause of action, it cannot be said that the offer constitutes the cause of action or enters into it. See Wade v. Clark, 52 Iowa, 158, 2 N. W. Rep. 1039;Myers v. Kirt, 68 Iowa 124, 26 N. W. Rep. 22;Case v. Blood, ante, 144, (decided at this term of court;) Harber v. Sexton, 66 Iowa, 212, 23 N. W. Rep. 635.
The cases cited by defendants' counsel in support of their position upon this point were decided in view of acts which go to the very right of action, without which neither law nor equity would grant relief. These acts thus become the element of the right of action. If the statute of limitations fully runs before they are done, the cause of action is barred, and cannot be revived by the subsequent performance of the acts. In this case, equity recognizes the plaintiff's right of action, but will not enforce it unless he does equity by payment of the taxes advanced by defendant. See Gardner v. Early, 28 N. W. Rep. 427. It is plainly to be seen from this view that the offer of payment does not pertain to the cause of action.
2. Defendants alleged in their answer in each case that the plaintiff is not the real party in interest, for the reason that the title of the land was conveyed to him for the purpose of allowing suit to be prosecuted in his name for the benefit of the owner. A demurrer to this defense was rightly sustained. The answer shows that plaintiff was a trustee at least, and, of course, as such, could prosecute the action.
3. We are now required to consider the questions arising upon plaintiff's appeals. The district court held, and so decreed, that defendants were entitled to recover the taxes, interest, and penalties as though there had been no sale, and plaintiff were seeking to pay the taxes as a delinquent tax-payer.
4. This court has held, in cases wherein sales were or could have been lawfully made for taxes, but were rendered void by reason of fraud or for other causes, that the holders of tax deeds may recover the taxes, interest, and penalty provided by the statute in case of the payment of delinquent taxes. Besore v. Dosh, 43 Iowa, 211;Miller v. Corbin, 46 Iowa, 150;Everett v. Beebe, 37 Iowa, 452.
5. Even if the taxes for which it was sold were not a lien on the land, the purchaser can recover the taxes he paid subsequent to the sale, with 6 per centum interest, and no more. Early v. Whittingham, 43 Iowa, 162.
6. The doctrine recognized by this court appears to be this: Where the tax is valid and enforceable against the land, and the sale is void or voidable, the tax, with penalties, may be recovered by the purchaser at the sale in an action against the owner. If the taxes cannot be enforced against the land by sale, the purchaser can recover the taxes paid by him subsequent to the sale, with 6 per centum interest. These rules are supported by the following reasons: In case the land may be sold for the taxes, the tax-payer stands in the position of a delinquent whose land is subject to tax sale. He ought in that case to be liable as a delinquent for the interest and penalties which the statute prescribed shall be paid after delinquency. The purchaser takes the place of the county by his purchase, and ought to recover the same amount the delinquent would be liable to pay to the county. The land-owner ought not to be permitted to escape the penalties imposed upon him for his delinquency. He should therefore pay them to the purchaser, who takes the place of the county. In case the taxes cannot be enforced against the land, the owner is not a delinquent tax-payer, and therefore should not be subject to penalties. The purchaser at a tax sale void because the tax is not enforceable against the land, who pays in good faith...
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