Smith v. Huber
| Decision Date | 08 February 1938 |
| Docket Number | 44222. |
| Citation | 277 N.W. 557,224 Iowa 817 |
| Parties | SMITH v. HUBER. |
| Court | Iowa Supreme Court |
Appeal from District Court, Shelby County; Grover W. Brown, Judge.
This action was originally commenced in a justice of the peace court in forcible entry and detainer to secure the possession of certain real estate. The case was transferred to the district court in which a judgment and decree was entered in favor of plaintiff, and defendant appeals.
Reversed and remanded.
Bennett Cullison and George O. Hurley, both of Harlan, for appellant.
White & White, of Harlan, for appellee.
Plaintiff and defendant, through one Larson acting as agent for both parties, sold to each other certain real estate for a consideration of $3,500. The property sold by plaintiff was farm land, and that of defendant city property. A contract for the sale and lease of said property was executed by each of the parties and delivered to the other on or about the 20th day of May, 1936. Under the contract of sale, defendant was to retain possession of said property until June 1, 1936 or until an abstract was furnished satisfactory to each . The contract provides that appellee's property was to be conveyed clear of all incumbrances, and that she was to furnish an abstract showing a " good merchantable title." Deeds were executed by each of the parties and delivered by the same agent.
Defendant refused to give up possession of the property she conveyed, and plaintiff commenced this action in justice court in forcible entry and detainer to evict her therefrom. As the title to real estate was involved, the case was transferred to the district court. Due notice to quit was served upon the defendant, but she refused to quit and still retains possession of the premises. These matters were all alleged in plaintiff's petition. The lower court held in favor of plaintiff, and defendant appeals. Further facts are stated in the opinion.
Defendant in separate counts of her answer alleges two defenses: (1) That at the time the contract of sale was entered into the defendant was sick and suffering from a stroke of apoplexy and did not know that she had executed said instrument; in other words, that she was mentally incapable of executing the contract of sale, and that the execution of said instruments was not her voluntary act; (2) that under the sale contract plaintiff was to furnish an abstract showing a good, merchantable title of the property sold to defendant in plaintiff, that the plaintiff was not and is not at this time the holder of a merchantable title to the real estate conveyed to defendant, and that the conveyance of the plaintiff did not operate to convey anything to the defendant, and that she received nothing of value in consideration therefor. That by reason of the matters alleged in counts 1 and 2, the defendant elects to rescind the contract and tenders a reconveyance of the property conveyed by plaintiff.
No issue is raised in the pleadings about the agent acting for both parties, and this question, therefore, needs no consideration.
I.
Appellant contends that appellee failed to comply with the terms of the contract of sale by not furnishing appellant an abstract showing a good, merchantable title to the property in appellee. This contention is based upon the claim that the only title shown by the abstract to exist in appellee is one derived through a tax deed issued to appellee's husband under a tax sale on December 3, 1923, under which a tax deed was issued to him on December 8, 1926. Appellant contends that the abstract fails to show that the tax deed conveys a good and merchantable title because it fails to show that any notice of redemption to the title owners or person in possession was served upon them as required by statute.
The question at issue in this case is not whether appellee, Mrs. Smith, had, in fact, a good title to the property as against the former title owners, but whether she furnished an abstract showing that she had a good and merchantable title.
Section 7279 of the Code provides: " After two years and nine months from the date of sale, * * * the holder of the certificate of purchase may cause to be served upon the person in possession of such real estate, and also upon the person in whose name the same is taxed, if such person resides in the county where the land is situated, in the manner provided for the service of original notices, a notice signed by him, his agent, or attorney, stating the date of sale, the description of the property sold, the name of the purchaser, and that the right of redemption will expire and a deed for the land be made unless redemption is made within ninety days from the completed service thereof." (Italics ours.)
Section 7280 provides that: " Service may be made upon nonresidents of the county by publishing the same once each week, for three consecutive weeks, in some newspaper of said county, or by personal service thereof elsewhere in the same manner as original notices may be served."
Section 7282 provides that: " Service shall be complete only after an affidavit has been filed with the treasurer, showing the making of the service, the manner thereof, the time when and place where made, and under whose direction the same was made ; such affidavit to be made by the holder of the certificate or by his agent or attorney, and in either of the latter cases stating that such affiant is the agent or attorney, as the case may be, of the holder of such certificate; which affidavit shall be filed by the treasurer and entered upon the sale book opposite the entry of the sale, and said record or affidavit shall be presumptive evidence of the completed service of said notice, and the right of redemption shall not expire until ninety days after service is complete." (Italics ours.)
Appellant contends that these statutes were not complied with, in that (1) the abstract of title fails to show that any notice was served upon the person in possession or upon the persons in whose name the property was taxed in the manner provided for the service of original notices; and (2) that no affidavit was filed with the county treasurer showing under whose direction the service was made, or that it was made by the holder of the certificate or his agent or attorney, or that the affiant is the agent or attorney of the holder of the certificate.
The record in this case shows that the person in possession and the persons in whose name this property was taxed were residents of the county in which the land was situated at the time it was sold and when the tax deed was issued. It shows that the only notice given prior to the issuance of the tax deed was a notice given by publication, and the only proof of said publication was the following:
(Signed and sworn to by Hal W. Campbell, September 24, 1926).
The abstract of title fails to show that any affidavit has been filed with the treasurer showing personal service as required by section 7279, or that the affidavit of publication was made under the direction of the holder of the tax certificate, or his agent or attorney, or that the person making the affidavit was the agent or attorney of the holder of the tax certificate, as required by section 7282 of the Code.
The appellee's title to the real estate is not questioned in this action by the former owners, and they do not appear as parties herein; therefore, a judgment or decree in this action would not be an adjudication of, or binding upon, the former title owners of the property in question.
The record also shows that this action was commenced more than five years after the execution and recording of the treasurer's deed. Appellee therefore contends that the action is barred by the provisions of section 7295 of the Code, which provides: " No action for the recovery of real estate sold for the nonpayment of taxes shall be brought after five years from the execution and recording of the treasurer's deed."
This contention would be correct if the deed issued by the treasurer was only voidable and not void as to former owners. This section applies to a tax deed which is simply voidable and not void, as where the defect in the service is irregular only, in which event a tax deed could not be questioned after the lapse of five years. Bullis v. Marsh, 56 Iowa 747, 2 N.W. 578, 6 N.W. 177; Monk v. Corbin, 58 Iowa 503, 12 N.W. 571; Trulock v. Bentley et al., 67 Iowa 602, 25 N.W. 824; Rice v. Haddock, 70 Iowa 318, 30 N.W. 579; Bolin v. Francis, 72 Iowa 619, 34 N.W. 447; Bull v. Gilbert, 79 Iowa 547, 44 N.W. 815.
The trouble with this contention, however, is that this court has repeatedly held that this statute also applies against the holder of the tax deed and " operates to bar an action by the holder of the tax title on the expiration of five years from the recording of the treasurer's deed." Wallis v. Clinkenbeard, 214 Iowa 343, 242 N.W. 86, 88; Innes v. Drexel, 78 Iowa 253, 43 N.W. 201; Barrett v. Love, 48 Iowa 103; Brown v. Painter, 38 Iowa 456; Hintrager v. Hennessy, 46 Iowa 600; Peck v. Sexton, 41 Iowa 566; Brett v. Farr, 66 Iowa 684, 24 N.W. 275; LaRue v. King, 74 Iowa 288, 37 N.W. 374.
In Innes v. Drexel, 78 Iowa 253, 254, 43 N.W. 201, 202, this court said: " And after five years from the time it begins to run not only is the tax-title extinguished, but all rights which are dependent upon it."
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