Bullis v. Marsh

• Decision Date: 18 June 1881
• Citation: Bullis v. Marsh, 56 Iowa 747, 2 N.W. 578 (Iowa 1881)
• Parties: BULLIS v. MARSH ET AL
• Court: Iowa Supreme Court

2 N.W. 578

56 Iowa 747

BULLIS v. MARSH ET AL

Supreme Court of Iowa, Des Moines

June 18, 1881

Appeal from Butler Circuit Court.

THE plaintiff brings this action in equity to quiet his title to 140 acres of land, being the N 1/2 N 1/2 N.W. 1/4 and S 1/2 N.W. 1/4 and S 1/2 N.W. 1/4, 2, 98, 12.The plaintiff claims title to said land through certain tax deeds.The defendantG. E. Marsh claims title to the land through purchase from the owner of the patent title.He alleges that the tax title is void, and prays that his own title may be quieted.The court decreed that the plaintiff is the absolute owner of the property in controversy and quieted his title thereto.The defendantG. E. Marsh appeals.

AFFIRMED.

H. T Reed and Foreman & Marsh, for the appellant.

L Bullis, pro se.

OPINION

DAY, J.

The treasurer of Howard county, by deed executed and filed for record on the 17th day of May, 1866, and purporting to be in pursuance of a tax sale on April 29th, 1863, conveyed to McClure Cowan the SW 1/4 of N W 1/4 2, 98, 12.At the same time, and purporting to be in pursuance of a tax sale held on the same day, the treasurer of Howard county conveyed to McClure Cowan the N 1/2 N 1/2 N.W. 1/4 and the SE 1/4 NW 1/4 2, 98, 12.This deed also conveyed several other tracts in different sections, townships and ranges.The said treasurer by deed executed July 28, and filed for record August 6, 1869, and purporting to be in pursuance of a sale held on October 3d, 1864, conveyed to J. H. Easton the S 1/2 of the N W 1/4 of N W 1/4, 2, 98, 12.These several deeds include all the lands in controversy.On the 10th day of September, 1869, McClure Cowan conveyed to W. Strother and L. Bullis by quit claim.Afterward, Strother quit claimed to Bullis.On July 10th, 1872, James H. Easton conveyed by special warranty to L. Bullis.In this manner Bullis became invested with the tax title to all the land in controversy.On the 28th day of April, 1871, the treasurer of Howard county executed to McClure Cowan two tax deeds, each purporting to be as a duplicate of the deed executed May 17, 1866, one conveying the N 1/2 N 1/2 NW 1/4, and the other the SE 1/4 NW 1/4, 2, 98, 12.Bullis and his grantor have paid the taxes on the lands from 1869 to 1876, both inclusive.

On April 16, 1877, Austin Corbin, the holder of the patent title, conveyed the entire N W 1/4 2, 98, 12 to the defendant Marsh, and he claims title to the lands under this conveyance.The other defendants made default.The land was unoccupied until October, 1876, when the defendant Strodley took possession for Corbin, and had three or four furrows broken around the quarter and seven or eight acres across the east end.After the sale to Marsh one Patterson went into possession and broke about sixty acres.We will first consider the objections urged by the defendant to the plaintiff's title.

I.It is claimed that the title of the plaintiff to the N 1/2 N 1/2 and SE 1/4 NW 1/4 of the section in controversy, eighty acres, is invalid, because the deed conveying includes ten distinct parcels of land en masse for the gross sum of $ 112.89.This deed was executed and recorded on the 17th day of May, 1866.This action was commenced on the 21st day of August, 1877, more than ten years after the recording of the tax deed.In Thomas v. Stickle, 32 Iowa 71, it was held that under § 790 of the Revision, 902 of the Code of 1873, no objection to the validity of a tax title can be made on the ground that the deed shows upon its face that several tracts of land were sold for a gross sum, after the expiration of five years from the time of the sale.To the same effect see alsoDouglass v. Tullock, 34 Iowa 262.These cases dispose of the question that the deed shows a sale en masse, and obviates the necessity of considering the effect of the deeds executed April 28, 1871.

II.It is urged that the alleged tax sale of April 29, 1863, upon which plaintiff bases his title to one hundred and twenty acres of the land in controversy, was in fact and law no sale.

1.It is urged that there was no advertisement of the sale as required in § 764 of the Revision.The tax deed is conclusive evidence of the advertisement.SeeMadson v. Sexton, 37 Iowa 562, and cases cited.

2.It is claimed that there could have been no legal sale on April 29th, 1863, because there was no regular sale on the first Monday in October, 1862, from which an adjournment could be made.The evidence does not show that the delinquent lands were not regularly offered for sale on the first Monday in October, 1862, nor that there was not a regular adjournment at that time.The only evidence upon that point is the testimony of one who was clerk of the board of supervisors, as follows: "I don't remember of any what you might call regular sale in 1861 or 1862.There were some sales to a few individuals during various times.

3.The evidence shows that after the first Monday in October, 1862, sales occurred at intervals of less than two months, until the sale occurred under which the plaintiff claims.It is objected that the register of sales contains no note of any adjournment of any of the sales.It is not necessary that the record should show an adjournment of the sale where the sale occurs at a time other than the first Monday in October.The deed is at least prima facie evidence of the regularity of the proceedings in this respect.Easton v. Savery, 44 Iowa 654;Eldridge v. Kuehl, 27 Iowa 160;Sully v. Kuehl, 30 Iowa 275;Love v. Welch, 33 Iowa 192;Lorain v. Smith, 37 Iowa 67.

4.The evidence shows that after the regular sale in October, it was customary for the treasurer to keep the sale open from day to day, in order that any one who desired might come in and make selections, which were entered up sold.The tax sale register shows a sale to McClure Cowan, April 29, 1863, of 12,983 acres.The evidence does not show...