Hintrager v. Kiene

• Decision Date: 15 December 1883
• Citation: Hintrager v. Kiene, 62 Iowa 605, 15 N.W. 568 (Iowa 1883)
• Parties: HINTRAGER v. KIENE ET AL
• Court: Iowa Supreme Court

15 N.W. 568

62 Iowa 605

HINTRAGER v. KIENE ET AL

Supreme Court of Iowa, Des Moines

December 15, 1883

Appeal from Dubuque Circuit Court.

ACTION to quiet title to lot 245 in the city of Dubuque.The plaintiff claims under a tax deed executed to him by the treasurer of the city of Dubuque, in pursuance of a tax sale purporting to be made upon a special tax for laying a plank sidewalk in front of the lot.The defendant, Kiene, claims to be the owner in fee simple of the south half of the lot, and the defendant, Zumhoff, of the north half.They both deny the validity of the tax sale, and deny that there was ever any levy of the alleged special tax; and they ask that their respective titles be quieted.Decree was rendered for the defendants.The plaintiff appeals.

AFFIRMED.

Robinson & Powers, for appellant.

Fouke & Lyon and McCeney & O'Donnell, for appellees.

OPINION

ADAMS, J.

The plaintiff introduced in evidence a tax deed, which purported to be executed in pursuance of a tax sale, made for a special tax levied in 1868.The deed thus introduced became by statuteprima facie evidence that the levy was made as therein recited.So far there is no controversy.After the introduction of the tax deed by the plaintiff, the defendants introduced evidence for the purpose of showing that no levy was in fact made.The controversy arises upon the question as to whether the defendants' evidence was sufficient to establish such fact.

If the levy was made, the action of the city council in making it should appear of record in a book kept in the office of the city recorder for the purpose of showing the proceedings of the city council.City Charter, Sec. 12, Laws of 1857 Revised Ordinances of 1861.It may be that the absence of all record of a levy would not conclusively show that none was made.But absence of the record of a levy is a circumstance tending to show that none was made, and it may be sufficient to overcome the prima facie evidence of the deed.Early v. Whittingham, 43 Iowa 162.It is true that the proof that certain books do not show a record of a levy would not necessarily be sufficient evidence that there is no record.It would not be sufficient, if the books produced were mutilated, Easton v. Savery, 44 Iowa 654; or if the books produced did not appear to be authentic or sufficiently identified, Genther v. Fuller, 36 Iowa 604; or if for any reason there was ground for supposing that there might be other books.In the case at bar, a book was introduced, which appears without question to be the record of the proceedings of the city council for the year 1868.The plaintiff himself, indeed, relies upon this book in part.It shows certain action of the council in relation to the sidewalk in question, but there is no pretense that it shows a levy of the special tax.The plaintiff insists that there is no sufficient evidence that it does not.But we think that there is.The recorder testified in substance that he had made an examination and found no record of a levy.It is true, his attention appears to have been confined to the year 1868, and it is suggested that perhaps there was a levy made before that time.But the deed recites no levy, except as made in 1868, and, what is more, the proceedings shown by the book and relied upon in part by the plaintiff, were had in 1868, and were proceedings preliminary to a levy.We think that there was sufficient evidence of the absence of the record of a levy to raise the presumption that there was no levy, and to overcome the prima facie evidence of the deed.We ought, perhaps, to say in this connection that the plaintiff contends that there was evidence showing that there was another book which might have contained the record of the levy, and which book was not produced, and does not appear to have been examined.The book referred to is called a minute book.But this minute book does not appear to be a book provided for by law, but to be in the nature of a private memorandum.It was not necessary, we think, to show that such book did not contain a record of the levy.

The plaintiff contends, however, that there was some affirmative evidence of a levy, aside from the deed.

A certain paper was introduced in evidence, purporting to be a resolution, dated November 10, 1868, and declaring that a tax of $ 5.90 is levied upon the lot in question to pay for a sidewalk.On the back of the paper was written the word "adopted."Evidence was introduced showing that the word "adopted" was in the hand writing of one Glab, who was city recorder at that time.

But in our opinion this paper was not competent evidence.It was introduced as a record of the proceedings of the council.But it was not such record as the law provides, to say nothing of its want of due authentication.

It is said, however, by the plaintiff that, even if the fact is that he has no title, he is nevertheless entitled to a decree that ...