McCash v. Penrod

• Decision Date: 16 October 1906
• Citation: 109 N.W. 180,131 Iowa 631
• Parties: C. C. MCCASH, Appellee, v. LEWIS PENROD, Appellant
• Court: Iowa Supreme Court

109 N.W. 180

131 Iowa 631

C. C. MCCASH, Appellee, v. LEWIS PENROD, Appellant

Supreme Court of Iowa, Des Moines

October 16, 1906

Appeal from Lee District Court.--HON. HENRY BANK, JR., Judge.

SUIT in equity to quiet plaintiff's title to an outlot in section 1, township 68, range 3, in Lee county, Iowa. Plaintiff claims title under a tax deed and by adverse possession. Defendant denies plaintiff's title, and claims ownership in virtue of a warranty deed from one Sourwine. He further avers that plaintiff's tax deed is of no validity because no taxes were due upon the land when the sale was made, because plaintiff was not the owner of the certificate of sale when the deed was made, because no notice of the expiration of the period of redemption was served upon the owner of the property who was in possession, and because the affidavit as to the publication of notice was insufficient. Upon trial to the court a decree was passed quieting plaintiff's title to the lot, and defendant appeals.

Affirmed.

E. C Weber, for appellant.

Seerly & Clark, for appellee.

OPINION

DEEMER, J.

Plaintiff holds a tax deed for the lot in controversy, regular upon its face, issued by the treasurer of Lee county, Iowa on October 24, 1885. This makes out a prima facie case for him and the burden is upon defendant to establish its invalidity. Even if this be established, plaintiff may show title by adverse possession, even under a void tax deed. If the tax deed be simply irregular, and not void, plaintiff is entitled to a decree for the reason that defendant's attack upon the deed is barred by section 1448 of the Code, which forbids such attacks after five years from the execution and recording of tax deed.

The land was sold for the taxes of the year 1881, and it is claimed that no taxes were due when the land was sold. This is on the theory that the taxes on outlot 7 were paid as shown by the tax list. It is true that the tax list shows an entry of payment of taxes on lot 7, and payment by sale for taxes of the taxes on lot 8; but the other records and the tax deed show a sale of lot 7, and not of lot 8, and evidence aliunde establishes the fact that the taxes were paid on lot 8, and not upon lot 7. That parol testimony is admissible, notwithstanding this showing on the tax list, see Ambler v. Clayton, 23 Iowa 173. Defendant was in no manner misled by this entry, and he has failed to show that the taxes on lot 7 were paid when it was sold. There is an ambiguity on the face of the records, and parol evidence is admissible to explain it. Consideration of this testimony leads to the conclusion that the taxes were not paid on lot 7 when the sale was made.

II. The land was sold at tax sale to one D. W. Henry, and he received the certificate of sale. Thereafter he assigned his certificate to James Karney, and the tax deed under which plaintiff claims was issued to James Carney. Notation of an assignment of the certificate appears upon the tax sale register as follows: "Assigned to James Karney, February 4th, 1885." Under the holdings of this court no notation of the assignment of the certificate was necessary, provided the person to whom the deed was made was in fact the holder of the certificate. Soukup v. Union Investment Co., 84 Iowa 448, 51 N.W. 167; Swan v. Whaley, 75 Iowa 623, 35 N.W. 440. There is no doubt that James Carney was the holder of the certificate by assignment, and the mistake in his name is of no consequence. The record shows that James Carney and James Karney were one and the same person, and that James Carney is the person who held the assignment of the certificate.

III. Complaint is made that the notice of redemption was not served upon the owner, who, it is said, was in possession of the land. The land was taxed in the name of H. C. Long, who was a non-resident of the State, and the notice, which was directed to him, was by publication. No one was in actual possession of the land when the time came for the notice; hence the notice was sufficient. American Bank v. Crooks, 97 Iowa 244, 66 N.W. 168.

IV. The notice was in the name of James Karney and the affidavit as to publication was in the name of James Carney. This is...