Moffit v. Fitzer

• Decision Date: 03 June 1913
• Parties: MOFFIT, AUDITOR OF CEDAR COUNTY, v. FITZER ET AL.
• Court: Iowa Supreme Court

141 N.W. 935

MOFFIT, AUDITOR OF CEDAR COUNTY,

v.FITZER ET AL.

Supreme Court of Iowa.

June 3, 1913.

Appeal from District Court, Cedar County; W. N. Treichler, Judge.

“Not to be officially reported.”

Appeal by executors of the estate of Christian Fitzer, deceased, from the assessment of omitted property. Reversed.W. G. W. Geiger, of Tipton, for appellants.

J. C. France, of Tipton, D. D. McGillivray, of Lowden, and McCoy & McCoy, of Oskaloosa, for appellee.

LADD, J.

[1] The county auditor of Cedar county notified the executors of Christian Fitzer, deceased, George and Herman Fitzer, in December, 1910, of the hearing, and in pursuance thereof entered property of the estimated value of $53,000 against them for taxation for that year. An appeal was taken to the district court, where the assessed value was reduced to $51,000. The executors again appealed and are here met with appellee's assertion that they are not entitled to have the record reviewed for that: (1) No objection to the listing of the property alleged to have been omitted from taxation was lodged with the county auditor; and (2) if objection were made, the nature of the same was not disclosed. That the interposition of objection to an assessment by the auditor is essential to review by the courts was held in Gibson v. Cooley, 129 Iowa, 529, 105 N. W. 1011,City of Marion v. Investment Co., 122 Iowa, 633, 98 N. W. 488, and other cases. Such objection need not be formal and may be expressed orally. Dowling v. Webster County, 134 N. W. 870. One of the executors testified: “I appeared before the county auditor in December, 1910, and he referred me to Mr. McCoy, the tax ferret. We urged all the objections before the tax ferret that we are urging here against the assessability of this property.” As the objections were made to the tax ferret by direction of the auditor, the latter is not in a situation to urge that these were not presented to himself instead. Murrow v. Heath, 146 Iowa, 347, 125 N. W. 259.

[2] The trial proceeded on the theory that the assessability of property as omitted had been put in issue, but the only direct evidence of precisely what the objections were is to be found in the notice of appeal from the assessment as made by the auditor, wherein it is said the executors asked “that the said assessment and listing be set aside, for the reason that the said estate should not be assessed with the said amount or any amount.” This notice was introduced in evidence, and, though ordinarily it would be of no significance other than effecting a transfer of the cause to the district court, we think it may be considered in connection with the testimony quoted and the theory on which the hearing was had as tending to show the nature of the objections to the assessment. There was no controversy as to objections having been made, and these to the person authorized by the auditor to hear them, and as their nature in challenging the assessability of the property for taxation appears from this notice, and the evidence adduced bears directly thereon, we are inclined to regard the record as disclosing with sufficient definiteness the objections to the assessment of property to these executors.

[3][4] 2. The will of Christian Fitzer left to the widow certain property in lieu of dower and gave to each of his children a legacy, and, in part 4, to all of them, “All the balance or remainder of my property, including” two quarter sections of land. The fifth paragraph of the will provides that: “After one year after my death, I authorize and direct my executors to sell the real estate described in part four hereof and divide the proceeds equally among the said nine children last named, giving first privilege to either of my children to purchase the same.” The executors advertised the land for sale, and it was sold on May 20, 1909, to the highest bidders; William Bierkamp purchasing one quarter for $21,480, and Ferdinand Petersen buying the other for $22,400. The executors entered into a contract with each purchaser, by the terms of which 10 per cent. of the purchase price was paid down and the balance deferred until March 1, 1910. On the latter date the balance of the purchase price on each tract was paid and appropriate conveyances executed. These contracts were adjudged assessable for taxation against the executors for the year 1910. They were not in form mere options as contended by appellant, but were contracts for sale as was held in construing an agreement in almost the exact language of these in Rampton v. Dobson, 136 N. W. 682. They were executed in pursuance of the power of sale conferred upon the executors in the clause of the will quoted above. The title to the land passed under the will to the children, and the naked power of sale only was conferred on the executors. A power to sell must be strictly pursued. Gardner on Wills, 551. The executors were not clothed with power to dispose of on time or to grant options. Tragdon v. Williams, 144 N. C. 192, 56 S. E. 865, 10 L. R. A. (N. S.) 867;Tibbs v. Zirkle, 55 W. Va. 49, 46 S. E. 701, 104 Am. St. Rep. 977, 2 Ann. Cas. 421.

The sole purpose of selling was to divide the property and distribute the proceeds among the children, and to accomplish this a sale for cash was essential, and the execution of the contracts can only be regarded as incidental in effecting that purpose. The amounts specified therein were not to bear interest, and time of performance was made of their essence, with a provision for forfeiture of the amounts paid on failure...