Hawkeye Life Ins. Co. v. Munn

• Decision Date: 09 March 1937
• Docket Number: 43558.
• Parties: HAWKEYE LIFE INS. CO. v. MUNN, County Treasurer, et al.
• Court: Iowa Supreme Court

272 N.W. 85

223 Iowa 302

HAWKEYE LIFE INS. CO. v. MUNN, County Treasurer, et al.

No. 43558.

Supreme Court of Iowa.

March 9, 1937

Appeal from District Court, Polk County; Loy Ladd, Judge.

This is an action in equity brought by Hawkeye Life Insurance Company (which will hereafter be referred to as appellee) asking the cancellation of a tax sale certificate held by the Hawkeye Loan & Brokerage Company (herein designated as the brokerage company), for an injunction against the issuance of a tax deed thereunder by reason of incorrect description of the property included within the sale, and for foreclosure of the lien of a special paving assessment certificate held by plaintiff against property owned by the defendants Elder (who will be designated as appellants). The county treasurer of Polk county was made a party defendant, but the county having no special interest in the outcome, filed no argument and its status will not be considered thereafter. The brokerage company answered, claiming that the court had no jurisdiction to foreclose the special assessment certificate and that, having given notice of the expiration of the period of redemption from tax sale, it was entitled to a deed. Defendants Elder charged that the special assessment was void and was never a lien, or, if it ever had been, it was lost by reason of failure to bring the delinquent installments forward on the tax list, under statutes to be hereafter considered. Plaintiff did not press its claim for foreclosure. The court dismissed defendants' (Elders') counterclaim in which it was asked to have title quieted against the plaintiff, and sustained the claim of the brokerage company to its right to a tax deed on a portion of the premises included within the sale, not including parts of adjacent streets covered by the description in its tax sale certificate. It sustained plaintiff's claim to a lien under its special assessment certificate to that part of the premises owned by the Elders not covered by the tax sale certificate. From this decree the defendants Elder first appealed, followed by an appeal on the part of plaintiff.

Affirmed.

Tax sale for general or ordinary taxes and tax deed issued thereon displace unmatured special assessment liens which attached prior to such sale.

H. H Griffiths, of Des Moines, for appellants.

Harding, Ruffcorn & Jones and H. W. Hanson, all of Des Moines, for appellee Hawkeye Life Ins. Co.

George Harnagel, of Des Moines, for Hawkeye Loan & Brokerage Co.

Carl A. Burkman, Co. Atty., of Des Moines, for Allen Munn, County Treasurer.

SAGER Justice.

This controversy arises chiefly because of a mistake in the description of appellants' property, which mistake seems not to have been discovered by the owners or the public authorities until shortly before this controversy arose.

On December 22, 1924, the city of Des Moines issued a special assessment certificate, known throughout the record as No. 2701 1/2, for street improvements previously made. This certificate came into the hands of appellee and affords the basis of this controversy. In the certificate the property to be charged was the south 80 feet of the north 105 feet of the east 145 feet of the west 178 feet of O. P. lot 19, in section 16-78-24. On December 2, 1930, the county treasurer sold at regular tax sale to the defendant McKeon (who later assigned the tax sale certificate in question to the brokerage company) " the north 80 feet of the west 145 feet of said lot 19." The brokerage company after the period of redemption had expired served notice thereof, but before the deed was delivered appellee interposed this action.

The description used by the county treasurer in the tax sale certificate was such as to include a half (33 feet) of S.W. Twelfth street on the west, and a half (25 feet) of Davis avenue on the north, which streets the parties hereto admit could not be sold for taxes. The result, in effect, was that the brokerage company held a certificate for a tract 112 feet east and west by 55 feet north and south, to which it claims the right to a deed, leaving an L-shaped tract 145 feet by 80 feet south and east of it still owned by appellants Elder, and to which appellee claims a lien under its certificate No. 2701 1/2 .

The outcome of the controversy turns on the proper construction of the various statutes relating to the assessment of general taxes and of special assessments, and the legal method of collecting both.

While there is some suggestion in the record that the proceedings which resulted in the certification of the special assessment to the county auditor were not regular, no serious argument is made on this complaint; but it is urged that the owner's name does not appear in the certificates issued in payment for paving done, as required by sections 6034, 6104, and 6105 of the Code 1935, which are identical with the sections of the same numbers in the Code of 1931, in force when this controversy arose. Likewise, it is claimed that the special assessment was not valid because of not complying with section 7145 and section 7193, which specify what the tax list must contain; or, if the assessment was ever a lien, it was lost because of failure to carry delinquencies forward according to the provisions of section 7193 of the Code.

Section 6228 of the Code provides for the sale of property for delinquent special assessments, and requires that such sale be made at the same time and in the same manner as such sales are made for general taxes; and it is under a sale made within the provisions of this section that the brokerage company claims its right to a deed.

Appellants Elder argue strenuously that, because of the delinquent installments of assessments not having been carried forward under the provisions of section 7193 of the Code, any lien which may have previously existed was lost. It appears, however, that all assessments due under certificate No. 2701 1/2 were paid except Nos. 8, 9, and 10, which were payable with the regular taxes in March of 1932, 1933, and 1934, respectively. Prior to April 30, 1931, when chapter 184 of the Acts of the Forty-Fourth General Assembly went into effect, there seems to have been no special provision with reference to the records to be kept of special assessments, though in our decisions they were regarded in the same manner as were general taxes, and the statute with reference to carrying forward delinquencies was applied to them as to other taxes. It appears from the record that the practice of the county treasurer's office of Polk county had been to enter in red ink in a column headed " Spec. and sales," presumably meaning " specials and sales," in the regular tax list, a notation of the number of any special assessment certificates chargeable against any specific property. In addition to this, the treasurer's...