Hart v. Delphey

• Decision Date: 08 June 1912
• Citation: 136 N.W. 702,157 Iowa 316
• Parties: N. M. HART, Appellee, v. M. O. DELPHEY ET AL., Appellants; and W. S. HART, Appellee, v. M. O. DELPHEY ET AL., Appellants
• Court: Iowa Supreme Court

136 N.W. 702

157 Iowa 316

N. M. HART, Appellee,
v.
M. O. DELPHEY ET AL., Appellants;

and

W. S. HART, Appellee,
v.
M. O. DELPHEY ET AL., Appellants

Supreme Court of Iowa, Des Moines

June 8, 1912

Appeal from Allamakee District Court.--HON. L. E. FELLOWS, Judge.

THE first of these actions was brought by Mrs. N. M. Hart to enjoin defendants from trespassing upon certain lands in Allamakee county, Iowa and the second action was brought by Mr. Hart, more than four years thereafter, to establish his title to another tract of land in said county against the defendants, and to cancel a redemption from tax sale claimed to have been made by said defendants, or one of them, and also to quiet his title to said land. Shortly before the bringing of the second suit, plaintiff amended her petition in the first one asking that her title to the property in controversy be quieted in her and for other equitable relief. Mrs. Hart claimed to be the absolute owner of the property described in her petition, and Mr. Hart the owner of the property described in his petition in virtue of certain tax deeds. The defendants denied plaintiffs' ownership of the lands and pleaded title and right of possession in themselves. They each pleaded an estoppel of each of the plaintiffs to assert title, and in replies filed by plaintiffs they pleaded that defendants were estopped. Upon trial to the court there was a decree for each of the plaintiffs as prayed and awarding damages against the Delpheys in the sum of $ 300 in favor of Mrs. Hart, and defendants appeal. Reversed in part; Affirmed in part.

First case reversed and remanded. Second case affirmed.

J. P. Conway, D. J. Murphy and H. H. Griffiths, for appellants.

William S. Hart, for appellees.

OPINION [136 N.W. 703]

[157 Iowa 319] DEEMER, J.

While the facts are not seriously in dispute, they are complicated and difficult to state with any degree of clearness. The land in controversy is an island in the Mississippi river near the west bank thereof, and this island is described as lots 5, 6, and 7 in section 26, township 97, range 3 west. Mrs. Hart claims to be the owner of lots 5 and 7, and Mr. Hart of lot 6, and the basis for each claim is a tax deed or deeds for said lots executed as hereinafter set forth. Defendants Delphey claim to own the same by purchase from the county and by reason of having homesteaded the same under circumstances hereinafter to be related. Each also claims that the other is estopped from making any claim to the lands. One of the claims of all parties is that the lands were "swamp" in character, that they passed from the United States government to the state, from the state to Allamakee county, and from Allamakee county to certain purchasers; and the records disclose that Mrs. Delphey has the paper title from the United States government, passing through the channels above indicated. The main reliance of the plaintiffs is upon tax deeds issued to them at various times, which defendants say were and are invalid because the lands were not subject to taxation at the times the taxes were levied against them. While defendants are relying upon a homestead entry which we shall presently consider, they, or at least one of them, is relying upon a patent from the United States government issued to the state under the theory that the lands were not subject to homestead entry, but were swamp lands, which passed to the state and county and afterward to Mrs. Delphey. So that the first question in the case is: Assuming the lands to be "swamp" in fact, when did the title to the same pass from the government and become subject to taxation? The patent did not in fact issue from the United States government until October of the year 1907, and the state patented the lots to the county in November of the same [157 Iowa 320] year. However, an approved swamp land list was issued by the United States and sent to the state of Iowa in April of the year 1907, and in September of the same year Allamakee county quitclaimed all the lots to Mrs. Delphey for the sum of $ 200 in cash paid by her. If this were all of the case, it would not be difficult of solution, for it is clear that under such a record the lands were not taxable before the year 1907, and the tax deeds under which the plaintiffs' claims were issued upon sales for taxes levied not later than the year 1901. In order, then, to recover under their tax deeds, plaintiffs must show that the lands were subject to taxation at the time the taxes were levied against them. That they were assessed by the county from the year 1879 to 1899 to unknown owners, and from 1899 to the time of the commencement of these actions to one or the other of the parties litigant, is not disputed. But it is also known that for the years 1894 to 1909 the lands were listed by or at the instance of Mrs. Hart, who then claimed to have an interest in part thereof, or to be one of the owners of two of the lots under a tax deed or deeds from the county.

The following facts are relied upon as showing that the lands were subject to taxation: It is said that, by reason of the character of the island, the lands comprising the same passed to the state of Iowa under the swamp land grant of the year 1850; that the state granted the same to the county; and that the county sold the several tracts at different times and to different buyers at various times--all as shown by the swamp land record still preserved in the office of the county auditor of Allamakee county. It is true that this copy of the swamp land list which was found in the county auditor's office shows the following with reference to these various lots:

[157 Iowa 321]

[136 N.W. 704]

This list contains description of eighteen different tracts, and with one exception they are marked in one or the other of these methods, "sold," "sold deeded," "deeded," or "deposit." In connection herewith, we here reproduce a receipt from Guthneck which is found in the record: "$ 21.73. Office of County Auditor. Harpers Ferry, Iowa December 29, 1909. Received of S. K. Kolsrud, county auditor, Allamakee county, Iowa twenty-one and 73-100 dollars, in full payment for money deposited with the auditor of said county years ago to purchase Gov. lot 7, section 26, township 97, range 3. Herbert Guthneck."

About the only other evidence of the sale of these lots by the county is: The assessment thereof for about thirty-three years, the payment of taxes thereon by the following named persons: Dayton, Tobiason, Ratcliffe, Hart, and the Delpheys. And tax sales of the lots or some of them in 1880 to Dayton; in 1888 to Tobiason; lots 5 and 7 in 1894 to William S. Hart & Co.; and lot 6 to Ratcliffe; in 1900 an undivided 1/60 of lot 6 to Hart; and in 1901 the remaining 59/60 of the lot to Hart. Plaintiff's title to lots 5 and 7 is based upon a tax deed issued in 1897 upon the sale of the lots in 1894 and to lot 6 upon tax deeds subsequently issued. The Harts have been in the actual possession of the lots since the issuance of the tax deeds, or at least down to the time that the Delpheys went into possession (as squatters according to plaintiff's claim) in November of the year 1902. Since that time there has [157 Iowa 322] been a controversy over the title to the lots which resulted in this litigation. It seems that the lots in question were at one time selected for the county as swamp lands by one named Sargent; but this list was canceled and superseded by one made for the county by one Jarrett, a surveyor and county selecting agent, and Jarrett made an entry on the back of his list as follows:

Des.	Sec.	T.	R'.	A.	Val.	Date.
Lot	6	26	97	3	26.50	3-8-'64	Millet & Williams
sold by
S. L. C.	$ 33.12
Lot	5	26	97	3	56.44	50	8-8-'66	Rec'd. Treas'r
Elizabeth
Klett, Dep't.	28.22
Lot	7	26	97	3	29.03	75	Guthneck &
Hertzog,
Dep't.	21.73

Part of Sec.	Sec.	Twp.	Range.	No. of Acres.
...