Bowen v. Duffie

• Decision Date: 24 April 1885
• Citation: 23 N.W. 277,66 Iowa 88
• Parties: BOWEN v. DUFFIE ET AL
• Court: Iowa Supreme Court

23 N.W. 277

66 Iowa 88

BOWEN v. DUFFIE ET AL

Supreme Court of Iowa, Davenport

April 24, 1885

Appeal from Sac Circuit Court.

THE plaintiff, Fannie Bowen, brings this action to set aside a tax sale to certain land in Sac county, and to quiet her title to the land. The court set aside the tax sale as to an undivided half of the land, and quieted plaintiff's title to such half. The defendants appeal.

AFFIRMED.

S. M Elwood and C. D. Goldsmith, for appellants.

M. D O'Connell, for appellee.

OPINION

ADAMS, J.

The sale in question was made to the defendant, Condron, and was for taxes of 1875, 1876, 1877 and 1878. The court set aside the sale, but found that the plaintiff never owned more than an undivided half of the premises, and quieted her title to such half; and of the finding of the court in this respect the plaintiff makes no complaint. The defendant Duffie claims to own the premises by reason of a tax deed executed prior to the sale in question. The defendant Condron denies the validity of Duffie's deed, and insists upon the validity of the sale to him. They both insist, however, that, whatever the court may think of the validity of Duffie's deed or the validity of the tax sale to Condron, the plaintiff must fail, because she has failed to prove that she ever owned any interest in the land. The claim of the defendant Sac county will be stated hereafter.

I. The question as to plaintiff's proof of ownership lies upon the threshold, and we will proceed to consider it first. She claims to have derived title to the property by deed from Langsdale. It is not denied by defendants that Langsdale was at one time the owner of an undivided half, but it is said that the alleged conveyance from him to plaintiff is not proved. A deed of the land was introduced, running to the plaintiff, and bearing the name of Langsdale as grantor; but it is said that it was not proved that the signature was genuine, either by extrinsic evidence or by proper acknowledgment of the deed. It may be conceded that the deed was not properly acknowledged, but we find in the evidence the testimony of the plaintiff, referring to the deed in these words: "The third of which in date is a deed from Joshua M. W. Langsdale and his wife to myself. I became the owner of said land by purchase from J. M. W. Langsdale and wife." One Wray, the plaintiff's brother-in-law, testified as follows: "I have known Fannie Bowen, plaintiff in this suit, for twenty years. She paid J. M. W. Langsdale $ 1,800 for said land, in money." This evidence appears to be wholly unrebutted, and was sufficient, we think, to show that the plaintiff was, at least, the equitable owner, and, as against the defendants, if they had no right of any kind in the land, was entitled to the relief which was accorded her.

II. We come next to the question as to the validity of the tax deed executed to Duffie. Its invalidity is predicated upon the fact that before the deed became due redemption was made from the tax sale. Duffie admits in his answer that redemption was made. It seems to have been thought at one time that the redemption was not valid, and that, we infer, is the reason that a tax deed was executed to Duffie, notwithstanding the redemption, but no question as to the validity of the redemption is raised now. Duffie's position is that, while it is true that the land was redeemed from the sale, and the deed was wrongfully issued, yet (as it appears) an action was brought by him against the parties in interest, in which he obtained an adjudication establishing his title, and he insists that the adjudication is still in force.

The fact appears to be that in the action brought by Duffie the defendants were notified merely by publication. None of them appeared before judgment; but the principal defendant, Langsdale, appeared afterwards and applied for an order for retrial, which was granted. We suppose that the application was made, and the order granted, under section 2877 of the Code. After the order was granted, Langsdale caused the case to be removed to the circuit court of the United States, and Duffie insists that no judgment was rendered in that court, but that the action was dismissed; and his legal proposition is that, if such is the fact, the judgment formerly obtained remains unaffected. As showing the fact of dismissal, he relies upon a stipulation of counsel introduced in evidence. As supporting his legal proposition, he relies upon a provision of the section above cited, that "upon the new trial the court may confirm the former judgment, or may modify or set it aside." He also relies upon Morton v. Coffin, 29 Iowa 235.

While it may be that the United States circuit court did not render a formal judgment setting the former judgment aside in the state court, as perhaps it could not do, it did, we think, what was, in effect, equivalent to it. The facts are, as shown by the averments of the petition, the...