Lyman v. Walker
| Decision Date | 15 December 1921 |
| Docket Number | 34027 |
| Citation | 185 N.W. 607,192 Iowa 982 |
| Parties | T. J. LYMAN et al., Appellants, v. W. A. WALKER et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Story District Court.--R. M. WRIGHT, Judge.
ACTION in equity, wherein plaintiffs asked that they be permitted to redeem from a certain tax sale; that a tax deed issued by the county treasurer to defendant Walker be set aside; that the title to the property be decreed to be in the plaintiffs that the court direct the county auditor to accept payment of the sum due defendant, and to issue a certificate of redemption; and for general equitable relief. On April 6 1920, the court entered its decree for defendants, finding that, prior to the issuance of the tax deed in question, the title to the property was in T. J. Lyman, and that T. J Lyman, guardian, had no title to said lands. This is substantially conceded now by appellant. The decree further finds that the words in Section 1441, Supplement, 1913 "in the manner provided for the service of original notices," do not apply to the time of service of notice required to be served under that section; that the service of the notice required by this section is not a judicial act, but is a ministerial act, and as such is not void if made on Sunday; that the facts and law are with defendants. Defendant Walker was decreed to be the owner of the property in controversy, under the tax deed issued to him. Judgment for costs was rendered against T. J. Lyman in favor of Walker. Plaintiffs appeal.--Reversed.
Reversed and remanded.
George C. White and Charles H. Hall, for appellants.
Fred E. Hansen, for appellees.
The action was originally brought by Lyman as guardian of his minor children, and it was alleged that, as such guardian, he was the owner of Lot 9, and the south 36 feet of Lot 8, in a certain subdivision in Nevada, Iowa. During the trial, the court, on motion of defendants, ordered that T. J. Lyman, in his individual capacity, be made a party plaintiff, so that the rights of title as between defendants and Lyman, guardian, and Lyman individually, might be determined. The pleadings on file were ordered to be applicable to Lyman as an individual. The property was sold at treasurer's tax sale, December 6, 1915, for the 1913 tax, amounting to about $ 21. On February 5, 1919, the county treasurer issued a tax deed to defendant Walker. Subsequently thereto, it was discovered that the treasurer had made a mistake in the recitals in said deed, and a second deed, with correct recitals, was issued to Walker by the treasurer, April 28, 1919. As we understand it, this is the deed upon which defendant relies.
If the first deed was regular and valid, the treasurer would have no authority to execute another deed; otherwise if the first deed was invalid. When the first deed is invalid, the period of limitations within which a tax deed may be attacked by the owner begins to run from the execution of the second deed. 26 R.C.L. 421, 422. On November 2 or 3, 1918, defendants caused to be served upon plaintiff a notice of expiration of time for redemption from the tax sale. Defendants' contention is that the notice was served on Saturday, November 2d, and the unverified return of the deputy sheriff so shows. Plaintiff contends that it was, in fact, served on Sunday, the 3d. It is alleged by plaintiff that the notice was not in compliance with the statutes, and was served on Sunday, and was, therefore, of no force or effect, and not binding upon plaintiff. Section 1441 of the statute provides that:
"After two years and nine months from the date of sale, the holder of the certificate of purchase may cause to be served upon the person in possession of such real estate, and also upon the person in whose name the same is taxed, in the manner provided for the service of original notices, a notice * * * Service shall be complete only after an affidavit has been filed with the treasurer, showing the making of the service, the manner thereof, the time when and place where made, * * * and said record or affidavit shall be presumptive evidence of the completed service of said notice."
Appellant contends that, because the return of the notice shows service on November 2d, when in fact it was not served until November 3d, this does not comply with the statute, because there has never been any proof of service filed, truthfully showing the actual time when the service was made; and that, therefore, the defendant has failed to complete the service as provided by the statute; and that, until such service is complete, the deed could not be legally issued. The further contention is that, if this be true, then the plaintiff's payment of the amount of the tax, interest, and penalty, up to March 1, 1919, was a good payment, and constitutes a full satisfaction of all of plaintiff's obligations to redeem his property.
Plaintiff alleges further that, about January 5, 1919, and before the treasurer's corrected tax deed of April 28, 1919, was executed, he paid to the county auditor $ 245, with directions that this money be used to redeem plaintiff's property that had been sold for taxes, and with the direction that plaintiff wanted to redeem such property; that the auditor, contrary to instructions, credited this sum in redeeming other property of plaintiff, wherein the notice of expiration of time was served and filed much later than was the notice of expiration of time for redemption of the property in controversy herein. The auditor denies that plaintiff gave such instruction as to the application and use of said money. He admits the payment of the money, but says it was for the redemption of certain property from tax sale, which properties were designated by plaintiff; but that he did not designate the property in controversy. Plaintiff further alleges that, on March 1, 1919, and before the corrected tax deed, he paid to the auditor $ 240 for the redemption of the property in controversy, and asked that he be given a certificate of redemption; that the auditor refused to issue plaintiff said certificate, but retained and still holds the $ 240. The auditor admits that payment was so made, and that he informed plaintiff that it was too late to redeem. Thereupon, the auditor received said money, giving plaintiff a receipt as follows:
"The above amount, $ 239.99, left by Thomas Lyman as a tender to W. A. Walker, for payment of redemption fees."
The auditor admits that he still holds the money.
The defendant Walker, answering first in general denial, then denies that Lyman as guardian is the owner of the property; admits that he holds tax deed and the correction deed; and alleges that he purchased the property at tax sale in good faith, and that, subsequently thereto, and prior to the issuance of the tax deed, he paid taxes on said premises as follows: May 23, 1917, special assessments in the amount of $ 28.66, and $ 48.20. He further alleges that, subsequent to the tax deed, he paid taxes as follows: On February 13, 1919, to redeem tax certificate No. 2449, $ 68.16, and to redeem tax certificate No. 2448, $ 46.61; and that, on March 31, 1919, he paid taxes on the premises in the form of special and general taxes, $ 111.42; that all said taxes were paid in good faith, and to perfect his title. By amendment, he alleges that, since the filing of his answer, he has paid the following taxes against said premises: September 27, 1919, regular taxes, $ 24.83; March 29, 1920, regular taxes, $ 17.09; March 29, 1920, special taxes, $ 24.20; March 29, 1920, special taxes, $ 40.23; March 29, 1920, special taxes, $ 4.82; March 29, 1920, special taxes, $ 12.80; and that said payments were all made in good faith, and in reliance on his title. He further alleges that, if the notice of redemption returned on November 2d was, in fact, served on November 3d, then said notice so served was consented to by Lyman, who thereby waived any and all defects in service; and that he is estopped by his voluntary acceptance of service, if said service was, in fact, made on Sunday, and cannot now claim said service to be illegal. The record does not show that plaintiff did voluntarily accept such service. The deputy sheriff testifies that plaintiff did not do so. The only basis in the record for the claim of appellee just referred to is that the deputy sheriff, who served the notice, admits that it was served on Sunday, the 3d, and that he asked plaintiff if it would be all right to date it back, and let the return show that it was served on Saturday, the 2d. The officer says that he understood that it would be all right; but the plaintiff denies that he consented to it, and says that he told the sheriff that it was a matter for the officer to determine as to what return he should make. We think there was no waiver or estoppel as to this, and no voluntary acceptance of service, as contended by appellee.
The plaintiff's evidence is without any substantial dispute in the testimony. It seems necessary to set out some of his testimony. As will appear from the testimony, the business by the different ones having to do with this matter was very loosely done. Plaintiff is a man working around at different jobs, shoveling coal, etc. It appears that he owned quite a number of separate pieces of property which were sold at tax sale. The sales were either made at different times, or the time for redemption expired at different times. It was plaintiff's intention to redeem all of his properties and he did redeem several pieces,--perhaps all but the one in question. He intended to redeem that. The value of the property in controversy does not appear definitely; but it is shown that, after defendant...
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