Prouty v. Tallman
| Decision Date | 10 December 1884 |
| Citation | 21 N.W. 675,65 Iowa 354 |
| Parties | PROUTY v. TALLMAN ET AL |
| Court | Iowa Supreme Court |
Appeal from Humboldt District Court.
ACTION in equity to quiet the title to real estate. Decree for the plaintiff, and defendants appeal.
AFFIRMED.
H Boies and J. L. Husted, for appellants.
A. E Clark, for appellee.
Both parties claim to own the real estate in controversy. The plaintiff's title is based on a sale for the delinquent taxes of 1860, and a treasurer's deed made in pursuance of the sale. The defendants are owners of the patent title. The defendants claim that the tax deed is void because there was no levy of taxes for the year 1860, and rely on a former adjudication. It was held in McCready v. Sexton, 29 Iowa 356, that a levy of taxes is essential to the validity of a tax sale, and that the deed is only presumptive evidence of the levy. In Moore v. Cooke, 40 Iowa 290, it was held that a valid levy cannot be established by parol, and that, if no record of a levy can be found in the proper office, the presumption that there was a levy, arising from the deed, is overcome. To the same effect is Early v. Whittingham, 43 Iowa 162.
The statute in force under which the levy was made is chapter 152 of the Acts of (1858) the Seventh General Assembly, and section 38 of said chapter provides that "the board of equalization shall levy the requisite taxes for the current year in accordance with law, and shall record the same in the proper book." The record-book containing the proceedings of the board of equalization for the years 1859 and 1861, and the record of the board of supervisors for subsequent years, show that taxes were duly levied for said years; but the record-book of the board of equalization fails to show a levy of taxes for the year 1860. Is it essential that the levy be entered or recorded in a book kept for that purpose, or is the statute in this respect directory? In Higgins v. Reed, 8 Iowa 298, the question was whether it is essential to the validity of a school tax levied or voted by a school-district that the proceedings should be recorded in a book; and it was held that the statute was directory only, and in that case the only record evidence of the levy was "kept on half sheets and quarter sheets of paper not bound in book form," and the tax was held to be valid. The same rule must prevail in this case, and therefore the statute must be regarded as directory, and that it is not essential to the validity of the tax in question that it was entered or recorded in the book kept for that purpose.
The foregoing writing is on an "ordinary sheet of legal-cap paper," and it was found nearly a year prior to the trial, in the auditor's office, "among old papers on file in that office." The plaintiff also introduced in evidence the following writing:
This writing is on an "ordinary sheet of legal-cap paper," and it was found among the papers in the auditor's office. The plaintiff introduced evidence showing that the signatures of Cragg, Bergk and Ames appearing on the foregoing papers, were their genuine signatures. The plaintiff further introduced in evidence the tax-list for 1860, and contends that the evidence aforesaid is sufficient record or written evidence that there was a levy of taxes for the year 1860, and that the presumption arising from the execution of the deed is so strengthened thereby as to overcome the presumption that there was no levy, because none appears in the record-book of the board of equalization. The board, at that time, was composed of the officers whose names are signed to the foregoing papers. Section 31, chapter 152, Acts 1858. The foregoing writings, on their face, purport to have been executed more than twenty years preceding the trial in the court below, and were found in the proper office, and in...
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