Shawler v. Johnson

• Decision Date: 05 December 1879
• Citation: 3 N.W. 604,52 Iowa 472
• Parties: SHAWLER v. JOHNSON
• Court: Iowa Supreme Court

3 N.W. 604

52 Iowa 472

SHAWLER v. JOHNSON

Supreme Court of Iowa, Des Moines

December 5, 1879

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Taylor Circuit Court.

ON the 30th day of April, 1878, the plaintiff commenced this action praying that his title to and estate in certain eighty acres of land in the petition described be established against the adverse claims of the defendant, and that the defendant be barred and estopped from having or claiming any right or title adverse to the plaintiff. Attached to the petition is an abstract of title, showing that on the 23d day of October 1871, the treasurer of Taylor county executed a tax deed conveying said land to N. B. Moore, which tax deed was recorded on the same day, and that on November 17, 1875, N. B. Moore, by warranty deed, conveyed said land to the plaintiff.

To the petition the defendant answered as follows:

"1st. Alleges that she is a resident of Jasper county, Iowa and never resident in Taylor county.

"2d. Denies that plaintiff is the owner in fee simple of the land described in his petition, or that he has any interest whatever therein other than that of possession wrongfully obtained and held.

"3d. Defendant admits that plaintiff is now in possession of the land described in his petition, and that he has been in such possession for and during the period averred in said petition, and that such possession is held under a pretended tax deed made, executed, delivered and recorded at the date set out in his petition. (This paragraph was amended. See amendment.)

"4th. Defendant further answering, and by way of new matter, alleges that from and after July 21st, 1862, up to the present date, she has been and now is the owner in fee simple of the land in plaintiff's petition described.

"5th. That plaintiff pretends and alleges title in himself to said land on and through a pretended tax deed made, executed and delivered by the treasurer of Taylor county, Iowa to N. B. Moore, under whom plaintiff claims:

"6th. That said alleged title claimed to have passed by and through said pretended tax deed is inferior to the title of defendant and absolutely void.

"7th. That the tax sale under and by virtue of which said pretended tax deed was made, executed and delivered, was made without advertisement of the land to be sold.

"8th. That said land was sold on a day not authorized by law.

"9th. That no valid tax deed was ever made, executed and delivered for said land to any one.

"10th. That on Saturday, August 29th, 1868, the treasurer of Taylor county, Iowa caused to be published in the Iowa South West, a weekly newspaper then published in said Taylor county, where the land in controversy is located, the following public notice:

'DELINQUENT TAX LIST FOR 1867.

'Notice is hereby given, that I will offer for sale at the court house door in Bedford, Taylor county, Iowa on Monday, the 5th day of October, 1868, at 10 o'clock a. m., the following parcels of land for the taxes due for the year 1867, and all previous taxes, interest and costs that may have accrued thereon. Sale to continue from day to day until all the lands are sold, or enough to satisfy the taxes due.

Dated August 29th, 1868.

E. ROSE,

Treasurer of Taylor County, Iowa.'

"And following this notice was a description of lands which said description did not contain the land here in controversy, and the said description of lands was so grossly defective as to be entirely void, and thereupon on the 15th day of September, 1868, the said treasurer, finding that there was not time sufficient within which to advertise said land for sale on the 5th day (first Monday) of October, 1868, as required by law, added to the advertisement aforesaid the following published notice in the Iowa South West:

'POSTPONEMENT OF TAX SALE.

'Notice is hereby given, that on account of an error appearing in the non-resident lands of Platte township, the sale of all property advertised for sale of taxes due for the year 1867 and previous years, is postponed until Monday, the 12th day of October, A. D. 1868.

E. ROSE,

Treasurer Taylor County.'

"And that on Monday, October 12th, 1868, said land was offered for sale and a sale thereof pretended to have been made, and on that pretended sale rests the validity of the tax deed and title through and upon which plaintiff claims.

"That said treasurer made said sale upon a day when by law he was absolutely unauthorized and forbidden so to do.

"12. That the recitations in said purchased tax deed as to the date of said sale and the adjournment thereof are absolutely false and fraudulent; that said land was sold on the 12th day of October, 1868, at a pretended tax sale begun and held on the second Monday (12th day) of October, 1868, and that the 12th day of October was the first day in 1868 upon which any tax sale was begun and publicly held in Taylor county, and that no tax sale was begun and publicly held on the first Monday in October, as recited in said pretended tax deed, and no adjournment was had on and from that first Monday of October, 1868, or any other day in 1868, except on and from the 12th day (second Monday) of October.

"13. That the books of the treasurer's office of Taylor county, Iowa show that a receipt was issued for the payment of taxes on the land in controversy for the year 1867, on the 13th day of May, 1868, the same being the taxes for which the said land was sold, or attempted to be sold on October 12 1868, and on which sale, or pretended sale, plaintiff's alleged title rests; that the evidence of payment contained in said treasurer's books have been altered, changed and obliterated, and the stub of the receipt marked and canceled. And all this change, alteration, obliteration and cancellation being made without the knowledge or consent of defendant, wherefore defendant prays that her title to said land be quieted, and that said tax deed be set aside and canceled." Afterward the defendant filed an amendment to her answer so that the third paragraph...