Thomas v. Rehwinkel, 15244.

• Decision Date: 31 March 1936
• Docket Number: No. 15244.,15244.
• Parties: THOMAS et al. v. REHWINKEL et al.
• Court: Indiana Appellate Court

102 Ind.App. 474

200 N.E. 719

THOMAS et al.

v.REHWINKEL et al.

No. 15244.

Appellate Court of Indiana, in Banc.

March 31, 1936.

Appeal from Carroll Circuit Court; Edward E. Pruitt, Judge.

Action by George H. Thomas and another against Emil C. Rehwinkel and others. From an adverse judgment, plaintiffs appeal.

Reversed, with instructions.

Wm. A. Dresser, of La Fayette, and Albert W. Ewbank, of Fort Wayne, for appellants.

Reidelbach Bros. & Spangler, of Winamac, and Harry M. Snideman, of La Fayette, for appellees.

KIME, Presiding Judge.

This was an action to foreclose tax liens upon two tracts of land in Tippecanoe county, Ind. At a sale of delinquent taxes the appellant's assignor offered to pay the delinquent taxes on these two tracts and take as security therefor a fractional interest of each tract. This was done, and, redemption not having been made, the certificates which appellant's assignor had taken were presented to the auditor and deeds therefor demanded. The auditor refused to execute the deeds until the certificates were accompanied by a survey and description of the parts of said land so purchased. The surveyor of the county afterwards prepared the descriptions to a 1/28 interest in one tract and a 1/76 interest in another tract, and specifically described them each coming out of the northwest corner of the respective tracts and deeds to such described premises were executed by the auditor and treasurer of the county purporting to convey the title thereto to these appellants. The appellants later, discovering that their deeds were invalid and ineffectual to convey title, brought this suit to recover from the owner of such lands the amount of such taxes, together with all lawful charges and interest at 20 per cent. per annum, and asking that such claim be a lien upon such lands. There is a special finding of facts and conclusions of law thereon; therefore there is no necessity that the pleadings involved here be set out or discussed, since there is no question raised except as to the conclusions of law. The special findings set out the facts enumerated above and in addition thereto disclose that the lands were properly described and were subject to taxation at the date of the assessment, and that a certificate in proper form had been given by the proper officer, and that there had been no redemption and that the auditor did not “on or before the day of sale fixed, to-wit: the first Monday in February, 1923, certify on said record immediately following such notice the manner in which the same was posted and the place and for what length of time it was printed and posted,” and that the lands were advertised for sale and sold at the tax sale February 12, 1923. The findings then set out the amount of the delinquent current taxes for 1922 and cost of the certificates, which in one instance was $29.90 and in the second instance $297; that the treasurer commenced the sale of land at the outside door of the courthouse and then adjourned into the treasurer's office to continue the sale, where these two tracts were sold, and that the appellant's assignor by his bid offered to pay the aforementioned sums for a 1/28 interest in one tract and a 1/76 interest in the other; that the auditor issued the certificates to the purchaser, and that he duly assigned the certificates to the appellants, and that these certificates were later exchanged for deeds which deeds were given after the surveyor made the descriptions as aforesaid.

Upon this finding of facts the court concluded (1) as a matter of law the tax deeds executed by the auditor to the appellants were invalid and ineffectual as a conveyance and failed to convey the title to the real estate therein described; (2) as a matter of law that the tax deeds are of sufficient validity to transfer to the appellants the lien of the state of Indiana; (3) as a matter of law the appellants are the owners and holders of said tax lien rights which are valid and subsisting liens upon the 1/28 and 1/76 interests respectively; (4) as a matter of law the owners of the real estate, namely, the two original tracts of...