Lucas v. Purdy
| Citation | 120 N.W. 1063,142 Iowa 359 |
| Parties | PHOEBE A. LUCAS v. ANNIE L. PURDY, Appellant |
| Decision Date | 05 May 1909 |
| Court | Iowa Supreme Court |
Appeal from Tama District Court.--HON. C. B. BRADSHAW, Judge.
THE plaintiff was married to Edward W. Lucas in 1852, with whom she lived as wife until his death December 17, 1900. He had entered thirty acres of land from the United States by original entry November 2, 1853, and it was sold by the county treasurer October 5, 1868, for the taxes of the previous year, and a tax deed issued to S. M. Beeson, who has since deceased, and under whose will the defendant acquired whatever title Beeson took under the tax deed. To the petition, stating these facts and that the inchoate dower interest in said land had never been divested, and praying that one-third thereof be set apart to her, the defendant demurred on the ground that whatever interest plaintiff had in said land was divested by the tax deed. The demurrer was overruled, and, as defendant elected to stand on the ruling a decree was entered awarding relief as prayed. The defendant appeals.
Reversed.
Struble & Stiger, for appellant.
O. A Byington and R. J. Smith, for appellee.
The sole question presented is whether a valid tax deed of land belonging to a husband, executed by the county treasurer in pursuance of the statutes of this State, divests the wife's inchoate right of dower therein. Section 3366 of the Code provides that: Appellee contended successfully in the trial court that, inasmuch as the tax sale was not a judicial sale, she was entitled to a third of the land as it had not been released by her nor sold on execution or judicial sale. A referee's sale in partition has been held to be a judicial sale (Williams v. Wescott, 77 Iowa 332, 42 N.W. 314), as has a sale by an assignee for the benefit of creditors (Stidger v. Evans, 64 Iowa 91, 19 N.W. 850), and also one by an assignee in bankruptcy (Taylor v. Highberger, 65 Iowa 134, 21 N.W. 487), and in Sturdevant v. Norris, 30 Iowa 65, a foreclosure by notice and sale, authorized by the Code of 1850, was held to divest the dower interest on the theory, as appears from the opinion, not that it was strictly within the definition of a "judicial sale," but that, "if the Legislature possessed the constitutional power to authorize this species of foreclosure, we see no good reason why the same consequences should not attach as in a foreclosure by action in court and sale on execution." Of course the only answer to this, if there were one, was that the Legislature in view of the above statute had not so declared. The courts have no part in the proceedings in this State which result in a tax deed. The sale is administrative and not judicial in character. In re N. Y. Protestant Episcopal School, 31 N.Y. 574; Pritchard v. Madren, 24 Kan. 486, 491. A decision to the contrary in Missouri was based on the fact that the tax deed is there made by the sheriff under the direction of the court. State v. Sargent, 12 Mo.App. 228.
Unless then the inchoate interest of plaintiff had been divested otherwise than contemplated in the exceptions noted in this statute, plaintiff was entitled to relief. Lucas v. White, 120 Iowa 735, 95 N.W. 209; Lucas v. Whitacre, 121 Iowa 251, 96 N.W. 776. But the above statute has for its object the protection of one spouse in the realty of the other, and not as against the sovereign claim of the State. All property is held subject to the payment of taxes which are imposed as an incident of sovereignty. City of Davenport v. Railway, 38 Iowa 633; Cooley, Const. Lim., 479. Blackwell on Tax Titles, 2. The burden of governmental support is borne by the people in return for the benefits derived from the protection afforded to life, liberty and property. There is a distinction between the taxing power and that of eminent domain, but it is only in degree, for, while taxation exacts money from individuals as their share of the public burden, theoretically the taxpayer receives just compensation in the benefits conferred by the government in the proper application of the taxes. In the exercise of eminent domain, property is taken, not as the owner's share of the public burden, but as more than his share for which special compensation is made. The power to tax, however, implies the power of the State to enforce the collection of the tax, and necessarily the State in its sovereign capacity may prescribe the mode of accomplishing this and define the interest in property upon which taxes shall attach as liens and what interest shall pass upon sale thereof owing to nonpayment by those upon whom such duty has been imposed, including the inchoate dower interest of the wife. Cooley on Taxation (2d Ed.) 444; 2 Scrib. Dower 8 et seq.; Morrison v. Rice, 35 Minn. 436 (29 N.W. 168).
The law as it stood in 1868, when the sale of the land for taxes occurred, and in 1871, when the deed issued, provided that "all personal property shall be listed, assessed and taxed in the name of the owner thereof." Section 719, Revision 1860. When it was impracticable to ascertain the name of the owner of real estate it was to be assessed under the head of "owners unknown." Section 737. "No demand of taxes shall be necessary, but it is the duty of every person subject to taxation to attend at the office of the treasurer (unless otherwise provided) at some time during the time mentioned." Section 756. Section 759, as amended by Acts Extra Sess., 8th General Assembly, chapter 24. The deed was issued without notice. Section 781. See section 1400, Code. And "when substantially thus executed (as directed) and recorded in the proper record of titles to real estate it shall vest in the purchaser all right, title, interest and estate of the former owner in and to the land conveyed and also all the right, title, interest and claim of the State and county thereto." Section 784, Revision 1860. So that the lien of the taxes was against all persons, and, as this was irrespective of the nature of the interest of any, necessarily included the owner of an inchoate dower interest. Upon the execution of the deed, this lien passed to the purchaser. In other words, the sale and execution of the tax deed was in effect the foreclosure of the lien and was as broad as the lien. i. e., against all persons save the United States and the State.
In providing that "the right, title, interest and claim of the State and county" should pass under the deed, the design evidently was to effect a complete transfer of the fee. This was a necessary consequence of the foreclosure of a lien existing against all persons and the logical construction of these statutes. Such is the purport of the decisions of this court declaring that the tax title is not derivative but original, is not limited to passing the title of him in whose name the land is taxed, but divests all interests in the land and vests in the grantee an independent and paramount title. Thus it was said in Petersborough Savings Bank v. Des Moines Sav. Bank, 110 Iowa 519, 81 N.W. 786, that "a tax title is not a derivative but a new title, in the nature of an independent grant from the sovereign." Similar expressions appear in McQuity v. Doudna, 101 Iowa 144, 70 N.W. 99, and Bellows v. Litchfield, 83 Iowa 36, 48 N.W. 1062. In Willcuts v. Rollins, 85 Iowa 247, 52 N.W. 199, the court observed that: See Bull v. Gilbert, 79 Iowa 547, 44 N.W. 815, where substantially the same language was employed. In Crum v. Cotting, 22 Iowa 411, the subject is somewhat exhaustively considered, and it was said that the tax deed "operates to destroy all prior interest and vests the purchaser with a new and independent title." It was there pointed out that the right, title, interest and estate of the former owner "mentioned in the statute which is vested by the deed in the purchaser can only be the right, title, interest and estate in the land, and not equities in favor of or against the former owner, flowing out of his being the former owner." The result of the decisions of this State are thus summarized in Hefner v. Insurance Co., 123 U.S. 747 (8 S.Ct. 337, 31 L.Ed. 309), by Mr. Justice Gray: "If the tax deed is valid then from the time of its delivery it clothes the purchaser, not merely with the title of the person who had been assessed for the taxes and had...
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