Tredway v. McDonald

• Citation: 2 N.W. 567,51 Iowa 663
• Parties: TREDWAY v. MCDONALD
• Decision Date: 08 October 1879
• Court: Iowa Supreme Court

2 N.W. 567

51 Iowa 663

TREDWAY v. MCDONALD

Supreme Court of Iowa, Des Moines

October 8, 1879

Appeal from Woodbury District Court.

ONE William R. Henry, being the owner of certain real estate in Sioux City, conveyed the same to Mary E. Casady on the 2d day of July, 1858. Mary E. Casady conveyed said premises to P. M Casady on the 20th day of February, 1865. P. M. Casady conveyed to O. C. Tredway, March 14, 1865. O. C. Tredway conveyed to John M. Tredway, the plaintiff herein, on the 24th day of January, 1877. The city taxes upon said real estate were unpaid for the year 1859, and on the 31st day of July, 1860, the same was sold at tax sale by the marshal of said city to one George Weare, and on the 11th day of August 1860, the said marshal made and delivered to said George Weare a tax deed in pursuance of said sale. On the 26th day of October, 1863, the said Weare made a quit-claim deed of said premises to said P. M. Casady.

On the 17th day of June, 1859, Sanborn & Follett filed a mechanic's lien upon said real estate for materials furnished for the erection of a building upon said premises. On the 8th day of May, 1860, Sanborn & Follett filed a petition in the district court of Woodbury county for the foreclosure of their mechanic's lien, and made Samuel H Casady, Mary E. Casady and one J. W. Bosler defendants thereto. The original notice was placed in the hands of the sheriff for service on the 14th day of May, 1860, and was afterward duly served upon said parties defendant. On the 6th day of November, 1866, judgment was rendered against said Samuel H. Casady for the amount of said mechanic's lien and a decree was entered against said Mary E. Casady foreclosing said mechanic's lien as against her, and barring her right, interest and title in said property. This judgment was afterward assigned by Sanborn & Follett to Miles White.

On the 15th day of March, 1867, one Francis White, as administrator of Elias A. White deceased, commenced an action to foreclose a trust deed upon said property executed by Samuel H. Casady and said Mary E. Casady on the 27th day of December, 1858. The said Samuel H. Casady, and Mary Casady, and O. C. Tredway were made parties defendant to said action, and they appeared and answered, and a trial was had. On the 27th day of August, 1870, a decree was entered foreclosing said trust deed against all of said defendants.

The plaintiff and those under whom he claims have been in actual possession of said property since the conveyance from George Weare to P. M. Casady, and have erected buildings thereon of the value of more than six thousand dollars.

On the 11th day of June, 1877, special executions were issued upon the two judgments and decrees of foreclosure, and the defendant, as sheriff, proceeded to advertise said property for sale to satisfy the same. This action was commenced on the 9th day of July, 1877, to restrain the sale of said property upon said executions. The foregoing facts were set forth in the petition, and it was averred that the execution in the trust deed foreclosure was for a larger amount than was due on the judgment. It was further alleged that the said judgment and foreclosure in the case for a mechanic's lien is not now a lien upon said property adverse to the plaintiff, because the said action of Sanborn & Follett was not brought within the time provided by the statute then in force, and the said claim had, therefore, ceased to be a lien before the commencement of that action; that the judgment entered in said action was not such a judgment as was required by statute to be entered in such cases; that said judgment should have been rendered against Samuel H. Casady, to be made first out of any other property subject to execution belonging to him, before resorting to the property upon which the lien was claimed; that at the time of the rendition of said judgment the plaintiff's grantors had become vested with the fee title to said property by virtue of said tax title, or, if not absolutely entitled to said property, clear of the lien, at the time of the rendition of the judgment, then the statute of limitations has since run against said judgment, no proceeding having ever been instituted to set aside said tax deed; and that on the 6th day of November, 1876, said judgment ceased to be a lien upon the property aforesaid.

It is further averred that no question was raised in the action for the foreclosure of the trust deed affecting the tax title to said property, and that, by reason of the said possession and title, all rights which may have at any time existed against said property, under and by virtue of said judgment, have long since been barred by the statute of limitations.

The defendant demurred to the petition, and also moved to dissolve the injunction. The demurrer in substance set forth, as grounds therefor, that it appeared from the allegations of the petition that the two judgments and decrees in question were valid liens upon said property. The demurrer was sustained. The injunction was dissolved, excepting that the sheriff's sale was restrained on the execution of the trust deed foreclosure for any greater sum than the amount for which judgment was rendered, with interest at six per cent per annum. The plaintiff elected to stand upon his petition, and he appeals.

AFFIRMED.

O. C. Tredway, for appellant.

Joy & Wright, for appellee.

OPINION

ROTHROCK, J.

I.

Appellant insists that he holds title to the property in controversy by virtue of the tax deed from the city marshal to Weare, and the subsequent conveyances down to the plaintiff, coupled with adverse possession from November 1, 1863. The tax deed in question was upon a sale for the delinquent taxes of 1859. The sale was had on July 31, 1860. The law in force which regulated tax sales was sections 503 to 508 of the Code of 1851, which merely gave the tax sale purchaser a lien for the taxes, and required that the lien created by a tax sale and deed should be foreclosed as a mortgage. In Crosthwait v. Byington, 11 Iowa 532, it was held that such tax deed created between the purchaser and the owner the relation of mortgagee and mortgagor, and until foreclosure the right to the possession remains in the owner. See, also, State v. Shaw, 28 Iowa 67. Under the statute the mortgagor or owner of the land was entitled to the possession, and the color of title set up by the defendant was only a lien. In Colvin v. McCune, 39 Iowa 502, there was a foreclosure of the tax deed, and it appeared that after the tax foreclosure the party in possession claimed to own the land by virtue of his tax title. It was there held that this made a claim of right. In the case at bar no foreclosure of the tax deed has ever been had.

This lien for taxes was by conveyance assigned by George Weare to P. M. Casady on the 26th day...