Roth v. Munzenmaier

• Decision Date: 28 October 1902
• Parties: ROTH v. MUNZENMAIER ET AL.
• Court: Iowa Supreme Court

118 Iowa 326

91 N.W. 1072

ROTH

v.MUNZENMAIER ET AL.

Supreme Court of Iowa.

Oct. 28, 1902.

Appeal from district court, Polk county; C. P. Holmes, Judge.

Suit in equity to foreclose a mortgage. Defendants Munzenmaier claim to be the owners of the patent title to the property, while the administrator and heirs of R. F. Young, deceased, claim under a tax deed issued to one Curtis in the year 1892, based on a tax sale in the year 1887 for the taxes of the year 1886. The real controversy is between the holders of the tax title, on the one side, and the mortgagee and holder of the patent title, on the other. As against the tax title, the holders of the patent title pleaded the five-year statute of limitations and laches. The administrator and heirs of Young responded by saying that neither Munzenmaier nor the mortgagee had title at the time of the tax sale, neither have they acquired one since, nor have they paid the taxes on the property, as required by section 1445 of the Code. On these issues a trial was had, resulting in a decree of foreclosure of the mortgage as prayed, and dismissing the cross-petition filed by the Young heirs. The administrator and heirs appeal. Affirmed.H. E. Long, for appellants.

J. D. Laws, for appellee Roth.

E. T. Morris, for defendant Munzenmaier.

DEEMER, J.

Section 1448 of the Code provided that no action for the recovery of real property sold for the nonpayment of taxes shall be brought after five years from the executing and recording of the treasurer's deed, etc. Under this section, it has been held that the statute begins to run at the time when the tax-sale purchaser might have obtained his deed,--that is, three years from the date of sale,--and that, if no action is brought by such purchaser within five years thereafter, the tax title is extinguished. Innes v. Drexel, 78 Iowa, 253, 43 N. W. 201;Doud v. Blood, 89 Iowa, 237, 56 N. W. 452;La Rue v. King, 74 Iowa, 288, 37 N. W. 374. To this rule there are some exceptions, not necessary to be noticed at this time. The material part of section 1445 of the Code reads as follows: “In all cases involving the title to real estate, claimed and held under a deed executed substantially as aforesaid by the treasurer, the person claiming title adverse to the title conveyed thereby, shall be required to prove, in order to defeat the title, either that the real property was not subject to taxation for the year or years named in the deed, that the taxes had been paid before the sale, that the property had been redeemed from the sale, and that such redemption had been had or was made for the use and benefit of the person having the right of redemption, or there had been an entire omission to list or assess the property, or to levy the taxes, or to give notice of the sale, or to sell the property; but no person shall be permitted to question the title acquired by the treasurer's deed, without first showing that he or the person under whom he claims title, had title to the property at the time of the sale, or that the title was obtained from the United States or this state after the sale, and that all taxes upon the property have been paid by such person or the person under whom he claims title,” etc. In the present case the land was sold in the year 1887 to one Curtis for the taxes of the year 1886. Curtis was therefore entitled to his deed on the 5th day of December, 1890. He did not take it, however, until June 16, 1892, and it was not recorded until March 9, 1896. The land was sold to Young on February 22, 1896, and his deed was recorded March 9, 1896. Munzenmaier and his family were in possession of the land in the year 1887, and remained in the use and occupancy thereof down to the time the administrator and heirs of Young filed their cross-petition in this case. Appellants contend that neither plaintiff, a mortgagee of the land from Munzenmaier, nor Munzenmaier himself, is in position to rely on the five-year limitation statute, for the reason that they have not shown title, or paid taxes as required by section 1445 of the Code, before quoted; while appellees contend--First, that this statute does not apply to the case; second, that, if it does apply, they have shown title from the government, by certain mesne conveyances from the patentee, or by adverse possession, and that all taxes assessed against the land were paid when the action was commenced.

The first point for decision then is the applicability of section 1445 of the Code. That the statute applies, at least to the extent of requiring a showing of title in him who pleads the statute of limitations, is held in Baird v. Law, 93 Iowa, 742, 61 N. W. 1086, and cases therein cited. Expressions may be found in some of our cases which seem to indicate a contrary view; but, when these cases are critically examined, it will be found that they are not in conflict with the rule announced in Baird v. Law. In some of these cases the tax deed was not issued until more than five years after the purchaser was entitled thereto, and the bar was upheld in favor of one in possession, or of the officer charged with the execution of the deed, without a showing of title. They are readily distinguishable from this case. Here the deed was issued within the statutory period, and the question is, who may dispute the title held thereunder, or that a tax title taken within the statutory period is secure against all persons save the true owners? Title by adverse possession is a sufficient basis, however, for the defense of the statute of limitations. Shelley v. Smith, 97 Iowa, 259, 66 N. W. 172. Now, while we are satisfied that plainti...