Snell v. Dubuque & S. C. Ry. Co.

• Decision Date: 23 May 1893
• Citation: 88 Iowa 442,55 N.W. 310
• Parties: SNELL v. DUBUQUE & S. C. RY. CO. ET AL.
• Court: Iowa Supreme Court

88 Iowa 442

55 N.W. 310

SNELL

v.DUBUQUE & S. C. RY. CO. ET AL.

Supreme Court of Iowa.

May 23, 1893.

Appeal from district court, Webster county; S. M. Weaver, Judge.

This is a suit in equity, and it involves the title to the tract of land in Webster county. There was a trial on the merits, and a decree for the plaintiff. The defendant W. G. Watters appeals.R. M. Wright, for appellant.

Frank Farrell, for appellee.

ROTHROCK, J.

1. The action was commenced in June, 1885. The plaintiff claimed the land under the act of congress approved September 28, 1850, relating to swamp lands. The defendant railroad company claimed title to the same land under the act of congress approved May 15, 1856, granting certain lands to the state of Iowa to aid in the construction of a railroad from Dubuque to a point on the Missouri river near Sioux City, and other roads. The cause was tried on the issue thus made, and there was a decree for the plaintiff. An appeal was taken to this court, and the decree was affirmed. See 78 Iowa, 88, 42 N. W. Rep. 588. F. T. Walker, one of the defendants, made an independent claim of title under a tax deed for the land, which deed was executed on the 24th day of September, 1883, in pursuance of a sale of the land for taxes made on the 15th day of January, 1880, for the delinquent taxes of the year 1878. A hearing was had on this issue in November, 1891, which resulted in a decree to the effect that the tax title was invalid. It is from this decree that the present appeal is taken. Walker, who was claimant under the tax title, had conveyed the land to W. G. Watters, and the trial was had between the plaintiff and Watters. The tax deed is claimed to be invalid upon two grounds. The first ground is that, when the tax sale was made, the tax list for 1879 was in the hands of the county treasurer, and the delinquent tax of 1878 was not brought forward and entered on the tax list of 1879 before the treasurer proceeded to make the sale. This is required to be done by section 845 of the Code. The tax sale was therefore invalid. Gardner v. Early, 69 Iowa, 42, 28 N. W. Rep. 427;Barke v. Early, 72 Iowa, 273, 33 N. W. Rep. 677. The second ground upon which the invalidity of the tax title is claimed is that the notice of expiration of redemption required by statute was not given to the person in whose name the land was taxed, nor to the person in possession. The evidence shows beyond all question that the notice was not served on the person in whose name the land was taxed. This alone is sufficient to invalidate the deed. Counsel for appellant seeks to avoid the effect of these omissions by claiming that the deed was not attacked on these grounds by any pleading...