Swan v. Whaley
| Decision Date | 08 December 1887 |
| Citation | 75 Iowa 623,35 N.W. 440 |
| Parties | SWAN v. WHALEY AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Butler county.
Action in equity by E. R. Swan to cancel a tax deed. The circuit court denied plaintiff relief, and he appealed.Hemenway & Grundy, for appellant.
J. H. Scales and Gibson & Dawson, for appellees.
The facts of the case are as follows: The real estate in question was sold in 1880 for the delinquent taxes of 1879, and was bid in by J W. Phillips, to whom a certificate of purchase was issued. Clark Fairfield, however, was interested in the purchase of this and other tracts of real estate sold at the same sale, being in partnership with Phillips. Afterwards the partners made a division of the certificates acquired under the sale, and the one in question fell to Fairfield. For the purpose of transferring it to him, Phillips wrote his name upon the back of it, and delivered it to him. After the expiration of two years and nine months from the date of the sale, Fairfield caused the usual notice of the expiration of the period of redemption to be served on plaintiff, who was then in possession of the property, and the actual owner thereof, although the legal title was in another. After the service of the notice on plaintiff, Fairfield sold, and, by proper writing indorsed thereon, assigned, the certificate to defendant A. A. Whaley; but no evidence of that assignment, or the one from Phillips to Fairfield, was recorded in the treasurer's office. After the service of the notice to redeem on plaintiff, he applied to Alex Christie for the loan of an amount of money sufficient to make the redemption. Christie preferred to purchase the certificate, and hold it or take a deed under it, and hold the title as security for the loan, and the parties agreed to take that course, provided the owner was willing to sell the certificate. They applied to Fairfield, and he agreed to assign the certificate to Christie for $65, which was slightly in excess of the amount that would have been required to redeem. He directed them to deposit the amount with the county auditor, and promised that he would assign the certificate to Christie, and leave it with the auditor, and receive the money. As a matter of fact, however, he had already sold and assigned it to Whaley, but had forgotten the transaction. Christie left the money with the auditor, and explained to him the arrangement with Fairfield, but directed him, in case Fairfield did not assign the certificate and leave it with him before the expiration of the period for redemption, to apply the amount necessary to make the redemption on the last day of the period. Plaintiff was present at the time, and acquiesced in that direction. The parties learned afterwards, however, that Fairfield had not been able to find the certificate, and they determined that they would not make the redemption, but would wait until the certificate should be found, or a duplicate procured, and the assignment made, and they informed both the auditor and Fairfield of that determination; but the money was permitted to remain in the auditor's hands. After the expiration of the period for redemption, Whaley presented the certificate to the county treasurer, who executed to him a tax deed of the premises.
1. It is contended that the transaction between Phillips and Fairfield did not amount to a legal assignment of the certificate to the latter, and hence he was not the proper person to give the notice to...
To continue reading
Request your trial