Hunt v. Gray

• Decision Date: 20 December 1888
• Parties: HUNT v. GRAY.
• Court: Iowa Supreme Court

76 Iowa 268

41 N.W. 14

HUNT

v.GRAY.

Supreme Court of Iowa.

Dec. 20, 1888.

Appeal from district court, Audubon county; A. B. THORNELL, Judge.

Plaintiff brought an action on a written contract, of which the following is a copy: “$1,000. JUNE 1, 1881. For value received, I hereby agree to pay to Mortimer Hunt, or order, the sum of one thousand dollars, with interest at eight per cent. per annum from the date of this note. Said note is payable at the Audubon County Bank of Audubon, Iowa, and shall become due and payable at the time of procuring a conveyance of the interest of the patent-title owner of the south-east quarter of section twenty-five, township eighty-two, range thirty-six, in favor of said Hunt or his grantees, or at the time of the perfection of the title to said land in said Hunt or his grantees. [Signed] GEORGE GRAY.” And he alleged in his petition that at the time of the execution of the contract the title to said land was perfect in him, and that at the same time, and as part of the same transaction, he executed and delivered to William Leet a conveyance thereof, sufficient in law to vest the title in him. Also that he and said William Leet had been in actual, open, and adverse possession of the land for more than 10 years, and that the money stipulated to be paid was therefore due and payable by the terms of the contract. He also set out the several conveyances constituting the chain of title, which show that he held under a treasurer's deed, executed in pursuance of a sale of the land for taxes alleged to be due thereon. He also pleaded a judgment recovered by his grantor against a former owner, quieting the title in him. Defendant admitted the execution of the instrument sued on, but denied that it was due or payable. He also alleged that the real agreement between the parties was that the money was to become payable only on condition that plaintiff should procure from the holder of the patent title to the land a relinquishment of all claim to and interest therein, which had never been done. Also that, if the last clause of the writing expressed any other or different agreement than that, it failed to embody the real undertakings of the parties, and was inserted in the instrument by their mutual mistake, or the mistake of the scrivener who drew it; and he prayed for the reformation of the writing. He also alleged that the tax deed under which the plaintiff claimed was void, and that the court rendering the judgment quieting the title in plaintiff's grantor did not have jurisdiction of either the subject-matter or the parties. The cause was tried as an equity action, and the judgment was for plaintiff. Defendant appealed. Revision 1860, § 784, (Code, § 897,) provides that the treasurer's deed of land sold for taxes, when executed and recorded substantially as therein required, “shall be conclusive of the following facts: (1) That the manner in which the listing, assessment, levy, notice, and sale were conducted was in all respects as the law directed. * * *”“(3) That all the prerequisites of the law were complied with by all the officers who had, or whose duty it was to have had, any part or action in any transaction relating to or affecting the title conveyed or purporting to be conveyed by the deed, from the listing and valuation of the property up to the execution of the deed, both inclusive; and that all things required by law to make a good and valid sale, and to vest the title in the purchaser, were done, except in regard to the points named in this section, wherein the deed shall be presumptive evidence only. * * *” These provisions follow subdivision 7 of the section, the provisions preceding being that the deed shall be presumptive evidence of certain facts. Code, § 902, provides that “no action for the recovery of real property sold for the nonpayment of taxes shall lie unless the same be brought within five years after the treasurer's deed is executed and recorded, as above provided;” and extends the time in cases of certain disabilities. By section 2529, subd. 5, actions for the recovery of real property may be brought within 10 years after their causes accrue, and not afterwards.H. G. Curtis, John M. Griggs, and Theodore F. Myers, for appellant.

George W. Paine, for appellee.

REED, J., ( after stating the facts.)

The land described in the contract was entered by James Wisehart, in 1859, and a patent was issued to him in the following year. The treasurer's deed was executed in February, 1871, under a sale on the first Monday of November, 1867, for taxes alleged to be due for 1861, 1865, and 1866; Charles Brennecke being the grantee. He subsequently conveyed the land to W L. Culbertson, who, on the 1st of April, 1876, conveyed it to plaintiff. In 1875 Culbertson instituted a suit in the circuit court of the county against Wisehart, praying that the title be quieted in him; and in September of that year a judgment was entered in accordance with the prayer of his petition, the original notice being served by publication. In March or April, 1881, defendant, as agent for William Leet, entered into negotiations with plaintiff for the purchase of a farm of 480 acres, which included the tract in question. He knew at the time that plaintiff held this tract under a treasurer's deed, and he claimed that he was instructed by his principal not to purchase any lands the title to which was in any manner doubtful. The negotiation resulted in a contract for the purchase of the farm, the price agreed upon being $7,000. Defendant received that amount of money from Leet, but, being apprehensive that the latter would hold him responsible for damages in case the title to the tract in question should prove defective, he desired to retain in his own hands a portion of the price until the question with reference to the title should be adjusted. The parties therefore agreed that he should retain $1,000 of the amount. He accordingly paid over to plaintiff $6,000, and the latter executed to Leet a conveyance of...