Halvorson v. Mullin

• Citation: 161 N.W. 309,179 Iowa 293
• Decision Date: 14 February 1917
• Docket Number: No. 30215.,30215.
• Parties: HALVORSON v. MULLIN ET AL.
• Court: United States State Supreme Court of Iowa

179 Iowa 293

161 N.W. 309

HALVORSON

v.MULLIN ET AL.

No. 30215.

Supreme Court of Iowa.

Feb. 14, 1917.

Appeal from District Court, Taylor County; H. K. Evans, Judge.

On rehearing. Former opinion affirmed.

For former opinion, see 156 N. W. 289.W. M. Jackson and G. B. Haddock, both of Bedford, for appellant.

Henry & Henry, of Des Moines, and J. R. Plummer, of Clearfield, for appellees.

PER CURIAM.

The opinion heretofore filed was responsive to the arguments presented, but in appellee's petition for rehearing he suggests that, inasmuch as the certificates of sale for taxes levied for special improvements was issued in December, 1910, such taxes must have been carried to the tax list prior to January 1st of that year, and thereby have become a lien on the property prior to the transfer of the lot to Lockband on March 16, 1910. As this might appear to have been negatived in the opinion, a rehearing was granted.

[1][2] Conceding that the sale of realty for taxes in December can only be had for taxes in the tax list January 1st preceding, it does not follow that being on said list renders them a lien on the land against which levied.

“The lien on real estate for taxes has no existence unless there be some statute creating it, and such statute must be strictly construed.” Desty on Taxation, 734; Eagle Mfg. Co. v. City of Davenport, 101 Iowa, 493, 70 N. W. 707, 38 L. R. A. 480;Jaffray v. Anderson, 66 Iowa, 718, 24 N. W. 527.

We have discovered no section of the Code, other than section 816, referred to in the opinion, directing how special assessments may be made liens on realty. Section 826 of the Code, on which appellee relies, merely provides that:

“A certificate of levy of such special assessment, fixing the number of installments and time when payable, certified as correct by the clerk, shall be filed with the auditor of the county, or of each of the counties, in which such city is situated, and thereupon said special assessment as shown therein shall be placed on the tax list of the proper county.”

Even though all the steps referred to be taken, a lien is not thereby effected unless section 816 has been complied with.

[3] The subsequent tax sale in December following and its validity does not necessarily depend on the existence of a prior lien. The sale thereof may be had as of land under a judgment the lien of which has ceased by limitation. See Stahl v. Roost, 34 Iowa, 475;Hawkeye Ins. Co. v. Maxwell, 119 Iowa, 672, 94 N. W. 207;Ritz v. Rea, 155 Iowa, 181, 135 N. W. 645. Something must be done in order to render special assessments or certificates thereof a lien, as between vendor and purchaser, and what that is is specified in section 816 of the Code in providing that:

“After a contract has been made by any city for the making or reconstruction of any street improvement or sewer, the clerk shall file with the auditor of the county, or each of the counties, in which said city is situated, a written or printed copy of the notice of the resolution provided for, with a true copy of the proof of publication thereof, together with a certificate of the clerk that an ordinance or resolution has been adopted directing the making or reconstruction of said street improvement or sewer. Thereupon all special taxes for the cost...