Hewitt v. Morgan
| Decision Date | 23 May 1893 |
| Citation | 55 N.W. 478,88 Iowa 468 |
| Parties | GEORGE W. HEWITT, Appellee, v. CARTER H. MORGAN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Sioux District Court.--HON. GEORGE W. WAKEFIELD, Judge.
ACTION in equity to quiet the title to eighty acres of land in Sioux county, claimed by the plaintiff through a tax deed. There was a hearing on the merits, and a decree in favor of the plaintiff. The defendant appeals.
Affirmed.
Struble Rishel & Hart and Pitts & Kessey, for appellant.
George W. Hewitt, for appellee.
In the year 1859 a patent for the land in question was issued by the United States to the defendant Morgan. On the twenty-sixth day of August, 1871, the treasurer of Sioux county executed and delivered to William H. Gurley a tax deed for the land which purports to be based upon a sale for delinquent taxes of the years 1864, 1865, and 1866, held on the third day of August, 1868. Subsequently conveyances of the land were made as follows: By Gurley to Laura Chamberlain; by Laura Chamberlain to Gurley; by Gurley to John Koster; by John Koster to Jacob Koster; by Jacob Koster to the plaintiff; by the plaintiff, of an undivided one-half of the land, to A Vander Meide, and by him of an undivided one-half to the plaintiff.
The defendant alleges that the tax deed conveyed no title, and is void for various reasons set out in the answer. In a pleading styled a "cross bill" he avers that he is the owner of the land in question; that the plaintiff claims some interest in it by virtue of the tax deed, and that Gurley makes some claim as the holder of a mortgage thereon, executed to him by J. Koster, based upon the tax deed, but that the tax deed is void for reasons stated in the answer. The defendant asks that the petition of the plaintiff be dismissed; that the tax deed be declared null and void; that the record thereof be held for naught; that the mortgage be declared null and void; that the plaintiff and Gurley be estopped to claim any right in the land adverse to the defendant; and that the title thereto be established and confirmed in him.
The plaintiff, in his reply to the answer, and answer to the cross bill, and Gurley, in his answer to the cross bill, plead various matters in support of their title. In addition to the conveyance described, both the plaintiff and Gurley claim under a deed alleged to have been executed by the defendant to one Marcus T. Sacia, and under a deed from him to Gurley, but the defendant pleaded, and the district court adjudged, that the pretended deed to Sacia was forged. As the plaintiff does not appeal, he can claim nothing in this court under the deed to Sacia, but must rely upon the tax title. The other issues were found by the district court in favor of the plaintiff, and a decree was rendered quieting his title, and dismissing the cross bill. The defendant served his notice of appeal only on the the plaintiff and the clerk. Gurley does not appeal, and is not a party to the proceedings in this court.
I. The appellant contends that the appellee must fail because there is no evidence that the tax deed was ever recorded. When it was offered in evidence, the defendant interposed to it nine objections, which cover nearly all of a printed page of the abstract. The eighth objection is stated as follows: "Because tax deed is not properly acknowledged, indexed, and recorded as required by statute." The appellant now insists that this objection was well founded. We find no competent evidence to show that the tax deed has been recorded, but we find that such evidence was not necessary. The petition alleges that the deed was "recorded in Record number 1, at page 26, of Sioux county records." That statement is not denied in any pleading filed by the defendant, and must, therefore, be taken as admitted. Moreover, in his answer the defendant, as a basis for affirmative relief, alleges "that the said pretended tax deed, and the record thereof, * * * constitute a cloud" upon his title. Among the numerous defects in the plaintiff's title alleged by defendant in his answer and cross bill, a failure to record the deed is not charged. No issue in regard to the recording of it was presented by the pleadings, and none could be raised by objection when the deed was offered in evidence. We are satisfied that a failure to record the deed was not urged as an objection in the district court, and it can not be insisted upon for the first time in this court. The condition of the record requires us to presume that the deed was not only recorded, but that it was recorded properly.
II. It is next urged that the deed from Gurley to Laura Chamberlain is not so acknowledged that it can be received in evidence. The objection is founded upon the fact that the seal of the notary public who certified the acknowledgment in the state of Ohio is defective. On it are engraved only the words "Notarial Seal," the name of the county in which the certificate was made, and the letter "O" for the name of the state. The law of the state of Ohio in regard to such seals is not shown. In this state the seal of a notary public is required to have engraved on it the words "Notarial Seal," the name "Iowa" and the surname, and at least the initials of the Christian name, of the notary. Code, section 259 (1). In the absence of proof to the contrary, it will be presumed that the requirements of another state in which an acknowledgment is taken are the same as those of this state. Stephens v. Williams, 46 Iowa 540. If the admissibility of the deed in evidence depends upon the sufficiency of the seal, the deed must be rejected as not having been shown to be acknowledged as required by the laws of this state.
III. But the rejection of the deed as evidence can not affect the decision of the case, for several reasons, which may be stated as follows: The petition alleges that Gurley conveyed the land to Laura Chamberlain, and that averment is not denied in the pleadings of the defendant. If a conveyance to Laura Chamberlain is not shown, it does not...
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