Cole, J.
’kenc®: tases. The pleadings are quite vohiminous and present questions upon demurrer, motion to strike, and effect of amendment after demurrer, &c., which become immaterial for us to determine, and it therefore unnecessary for us to incumber the record with them.
I. After the defendants had answered the supplemental petition, they obtained leave and filed an amended answer, in which they set up that defendant, Thomas Beale, paid the taxes for 1858. On the trial, after the plaintiff had rested his case, the defendant, Thomas, was introduced and sworn as a witness, and by whom the defendants offered to prove that in January, 1859, he paid the taxes for 1858, upon the land included in the tax deed. The plaintiff objected on the ground that such fact could only be shown by a written receipt, signed by the treasurer; the court sustained the objection and the defendants excepted. The defendants then offered to prove by said witness, the loss of the tax receipt; and that at the time he took the receipt, no duplicate was handed to him to take to the county judge. The defendants then offered to prove by the person who was county judge at the time, and by four or five others, and among them the deputy treasurer, that it was not customary in that county, in 1858 or 1859, to take or leave duplicate tax receipts with the county judge, and that frequently no record was made of the payment of taxes; and also by the present county judge that there were but few duplicate tax receipts among the papers of his office, and none to the defendant, Thomas Beale. To all this the plaintiff objected as insufficient to lay the foundation for Thomas Beale to testify as to the payment of the tax or the contents of the receipt; which objection the [65]*65court sustained, and defendants excepted, and now assign such rulings as error.
These objections and rulings were founded upon section 86, chapter 152 of Laws of Seventh General Assembly, p. 337, which required tax payers to take duplicate receipts, leave one with the county judge, and take his signature and indorsement of “duplicate surrendered” on the other, and then provided that “no receipt for taxes shall be held as evidence of the payment thereof without such signature of the county judge.”
This statute may well be held to accomplish all its language imports, or which may be reasonably construed as its purpose, and yet fall far short of sustaining the rulings sought to be founded upon it. The receipt, either with or without the statute, is no more primary evidence of the fact of payment than a living competent witness to the same fact. If a party was compelled to rely upon the receipt as his evidence of the payment, then the statute might defeat that reliance unless its provisions had been complied with; this of course upon the theory that the statute was still in force or properly applicable to the case.
But a statute which prohibits the introduction of one class of evidence, cannot properly be construed to exclude another class not mentioned, simply because such other class is co-equal with it.
Mr. Blackwell in his work on Tax Titles, p. 489 (of first ed. and 417 of second ed.), says: “The payment of the tax being matter in pais, may be proved by oral evidence, it is not necessary to introduce the collector’s books or his receipt, or produce the assessment roll, but the collector or other officer to whom the payment was made, the agent of the owner, or any person present at the' time of payment, are competent witnesses to prove the fact!” See also, 2 Greenl. on Ev., § 569, and cases cited; Dennett v. Crocker, 8 Greenl., 239.
[66]*662._aeea [query.]' By the statute under which- this sale for taxes was made,it is provided (Rev., § 784) that the tax deed shall be prima facie evidence only, of the payment of the the tax, while it is made conclusive evidence that the property was listed, assessed, levied, advertised, sold, &c., as required by. law. It has been held that it is competent for the legislature to declare that a tax deed shall bq prima facie evidence of the regularity of prior-proceedings. Allen v. Armstrong, 16 Iowa, 808, and authorities cited. This presumption may be contradicted by other testimony. But whether the legislature may declare in advance that an instrument false in fact, shall be conclusive evidence of its truth, has not yet been determined, certainly not by this court. How far, if at all, such legislative' action may be in violation of our Bill of Rights, which declares that. “No person shall be deprived of his life, liberty or property without due process of law,” it is not necessary in, this case to decide. Suppose, however, the legislature should declare that an indictment duly found by a grand jury, should be conclusive evidence of the guilt of the accused, would this deprive him .of “ his liberty without due process of law ? ” If so, where is the line at which the legislative power begins, and where does it end ?
3 taxa(Rsmpt’ion: homestead. II. Upon the trial of the cause, the defendants offered to Prove on the 17th day of December, 1864 (which was after the tax deed was made), the defendants fost learned of- the tax sale, and thereupon Elizabeth Beale at once duly tendered the amount necessary to redeem from the tax sale, if she had the right to redeem. The plaintiff objected to this evidence on the ground that it was immaterial. The court sustained the objection, and excluded the evidence. This ruling is now assigned as error.
The statute (Revision, § 779) provides that real .property sold for. taxes may be redeemed before the expiration of [67]*67three years, by paying “ the amount for which the same was sold, and thirty per cent on the same, with ten per cent per annum interest on the whole amount from the day of sale,” and the subsequent taxes paid, with ten per cent thereon, &c. (see now Acts of Ninth General Assembly, chap. 173, § 13, p. 226); and then follows this proviso: “ Provided, that if real property of any minor, married woman or lunatic, be sold for taxes, the same may be redeemed at any time within one year after such disability be removed, upon the terms specified in this section.”
The question presented in this case, is whether the interest of the wife in the homestead is such as that it can be properly regarded the “real property of a married woman ” within the meaning of the above quoted redemption clause of our statute.
The Revision of 1860 (which in this respect is like the Code of 1851), under the heading of “Construction of statute,” sec. 29 of subdivision 8 provides that' “the word ‘land’ and the phrases ‘real estate’ and ‘real property’ include lands, tenements and hereditaments and all rights thereto, and interest therein, equitable as well as legal.”
Arau.i. oteST: character of right. The right of the wife to the homestead of the husband, and her interest in it, are present, fixed and substantial: they are not merely possible, remote or conti n-gent. Her rights and interests are in possession ° . ° . 1 an(j enjoyment, and not merely m expectancy or dependent. The husband and wife are, as to the homestead practically, j'oint tenants, subject to certain limitation for the benefit of children, &c. The husband- cannot alienate the homestead nor even his own interest in it, except the wife concur in signing the conveyance.
Free access — add to your briefcase to read the full text and ask questions with AI
Cole, J.
’kenc®: tases. The pleadings are quite vohiminous and present questions upon demurrer, motion to strike, and effect of amendment after demurrer, &c., which become immaterial for us to determine, and it therefore unnecessary for us to incumber the record with them.
I. After the defendants had answered the supplemental petition, they obtained leave and filed an amended answer, in which they set up that defendant, Thomas Beale, paid the taxes for 1858. On the trial, after the plaintiff had rested his case, the defendant, Thomas, was introduced and sworn as a witness, and by whom the defendants offered to prove that in January, 1859, he paid the taxes for 1858, upon the land included in the tax deed. The plaintiff objected on the ground that such fact could only be shown by a written receipt, signed by the treasurer; the court sustained the objection and the defendants excepted. The defendants then offered to prove by said witness, the loss of the tax receipt; and that at the time he took the receipt, no duplicate was handed to him to take to the county judge. The defendants then offered to prove by the person who was county judge at the time, and by four or five others, and among them the deputy treasurer, that it was not customary in that county, in 1858 or 1859, to take or leave duplicate tax receipts with the county judge, and that frequently no record was made of the payment of taxes; and also by the present county judge that there were but few duplicate tax receipts among the papers of his office, and none to the defendant, Thomas Beale. To all this the plaintiff objected as insufficient to lay the foundation for Thomas Beale to testify as to the payment of the tax or the contents of the receipt; which objection the [65]*65court sustained, and defendants excepted, and now assign such rulings as error.
These objections and rulings were founded upon section 86, chapter 152 of Laws of Seventh General Assembly, p. 337, which required tax payers to take duplicate receipts, leave one with the county judge, and take his signature and indorsement of “duplicate surrendered” on the other, and then provided that “no receipt for taxes shall be held as evidence of the payment thereof without such signature of the county judge.”
This statute may well be held to accomplish all its language imports, or which may be reasonably construed as its purpose, and yet fall far short of sustaining the rulings sought to be founded upon it. The receipt, either with or without the statute, is no more primary evidence of the fact of payment than a living competent witness to the same fact. If a party was compelled to rely upon the receipt as his evidence of the payment, then the statute might defeat that reliance unless its provisions had been complied with; this of course upon the theory that the statute was still in force or properly applicable to the case.
But a statute which prohibits the introduction of one class of evidence, cannot properly be construed to exclude another class not mentioned, simply because such other class is co-equal with it.
Mr. Blackwell in his work on Tax Titles, p. 489 (of first ed. and 417 of second ed.), says: “The payment of the tax being matter in pais, may be proved by oral evidence, it is not necessary to introduce the collector’s books or his receipt, or produce the assessment roll, but the collector or other officer to whom the payment was made, the agent of the owner, or any person present at the' time of payment, are competent witnesses to prove the fact!” See also, 2 Greenl. on Ev., § 569, and cases cited; Dennett v. Crocker, 8 Greenl., 239.
[66]*662._aeea [query.]' By the statute under which- this sale for taxes was made,it is provided (Rev., § 784) that the tax deed shall be prima facie evidence only, of the payment of the the tax, while it is made conclusive evidence that the property was listed, assessed, levied, advertised, sold, &c., as required by. law. It has been held that it is competent for the legislature to declare that a tax deed shall bq prima facie evidence of the regularity of prior-proceedings. Allen v. Armstrong, 16 Iowa, 808, and authorities cited. This presumption may be contradicted by other testimony. But whether the legislature may declare in advance that an instrument false in fact, shall be conclusive evidence of its truth, has not yet been determined, certainly not by this court. How far, if at all, such legislative' action may be in violation of our Bill of Rights, which declares that. “No person shall be deprived of his life, liberty or property without due process of law,” it is not necessary in, this case to decide. Suppose, however, the legislature should declare that an indictment duly found by a grand jury, should be conclusive evidence of the guilt of the accused, would this deprive him .of “ his liberty without due process of law ? ” If so, where is the line at which the legislative power begins, and where does it end ?
3 taxa(Rsmpt’ion: homestead. II. Upon the trial of the cause, the defendants offered to Prove on the 17th day of December, 1864 (which was after the tax deed was made), the defendants fost learned of- the tax sale, and thereupon Elizabeth Beale at once duly tendered the amount necessary to redeem from the tax sale, if she had the right to redeem. The plaintiff objected to this evidence on the ground that it was immaterial. The court sustained the objection, and excluded the evidence. This ruling is now assigned as error.
The statute (Revision, § 779) provides that real .property sold for. taxes may be redeemed before the expiration of [67]*67three years, by paying “ the amount for which the same was sold, and thirty per cent on the same, with ten per cent per annum interest on the whole amount from the day of sale,” and the subsequent taxes paid, with ten per cent thereon, &c. (see now Acts of Ninth General Assembly, chap. 173, § 13, p. 226); and then follows this proviso: “ Provided, that if real property of any minor, married woman or lunatic, be sold for taxes, the same may be redeemed at any time within one year after such disability be removed, upon the terms specified in this section.”
The question presented in this case, is whether the interest of the wife in the homestead is such as that it can be properly regarded the “real property of a married woman ” within the meaning of the above quoted redemption clause of our statute.
The Revision of 1860 (which in this respect is like the Code of 1851), under the heading of “Construction of statute,” sec. 29 of subdivision 8 provides that' “the word ‘land’ and the phrases ‘real estate’ and ‘real property’ include lands, tenements and hereditaments and all rights thereto, and interest therein, equitable as well as legal.”
Arau.i. oteST: character of right. The right of the wife to the homestead of the husband, and her interest in it, are present, fixed and substantial: they are not merely possible, remote or conti n-gent. Her rights and interests are in possession ° . ° . 1 an(j enjoyment, and not merely m expectancy or dependent. The husband and wife are, as to the homestead practically, j'oint tenants, subject to certain limitation for the benefit of children, &c. The husband- cannot alienate the homestead nor even his own interest in it, except the wife concur in signing the conveyance. Can it be said then that she has no “interest in” that, the present possession of which she enjoys, the title to which cannot be imparted without her consent, and the alienation [68]*68of wliicb can only be done by her joining in the conveyance.
The nature of a wife’s interest in the homestead is such, as the decision shows (see 1st Am. Law Reg. N. S., 709), that it is not in general liable to be affected or concluded by the omission, neglect or default of the husband. Sargent v. Wilson, 5 Cal., 504; Revalk v. Kramer, 8 Id., 66; Tadlock v. Eicles, 25 Texas, 782; Marks v. March, 9 Cal., 90.
Whatever doubt may possibly have existed as to the meaning of the phrase “ real property,” as understood at the common law, is certainly made very clear by our statute defining its meaning, as quoted above.
tIxsams00tfo™°' But aside from the statutory definition, the rule of construction, which obtains in redemption cases, gives to word “owner,” and phrase “party in inter-est,” quite as broad and comprehensive a meaning as the statute quoted supra. In construing the redemption laws, the word “ owner ” is held to be a generic term, which embraces .the different species of interest which may be carved out of a fee simple estate. Blackwell on Tax Titles, 1st ed., 495 (2d ed., 423); Byington v. Rider, 9 Iowa, 566. Where land has been mortgaged to secure a debt, and judgment creditors have liens upon it, and the land is in possession of a stranger to the title, whose possession is ripening into a right, each is an “owner” according to the extent of his interest or claim, and each has a right to protect his interest by a redemption from a tax sale. Blackwell on Tax Titles, 496 (2d ed., 423).
Arm. a.— “Owner:” redemption, Any right which in law or equity amounts to an owmership in the land; any right of entry upon it, to its possession or engagement, or any part of it which may be it _ _ deemed an estate, makes the person an owner as far as it is necessary to give him the right, to redeem. Dubois v. Hepburn, 10 Peters, 1; see also Byington v. Book-[69]*69waiter, 7 Iowa, 512; Masterson v. Bearsly, 3 Ohio, 301; Burton v. Hintrager, 18 Iowa, 348. In view of our statutes defining the meaning of the phrase “real property,” and of the great liberality of construction given to redemption clauses of revenue acts, a majority of the court are agreed in holding that under our homestead laws the wife of a “ head of a family ” has the right to redeem the homestead from a tax sale.
And it has been held by this court, that where a person has the right to redeem within the time given by the general clause of the statute, such person may, if within either of the classes of persons, to whom, by a proviso or otherwise, greater time Is given, redeem within such additional time. Burton v. Hintrager, supra.
4. tax uineof tum. III. By an act of the ninth General Assembly, chap. 178) sec. 13 (vide Laws of 1862, p. 226) sec. 779, quoted supra, was repealed; and there was enacted peu thereof a section similar in its general features, but with proviso extending the right of redemption beyond three years, and to one year after removal of disability to infants and lunatics only. And hence the question arises in this case, whether such repeal of the law, giving to married women the right of redemption after three years, &c., has cut off the right to redeem, which accrued by the statute under which the sale was made.
It is not necessary for the determination of this case to discuss the question upon principle, as to the effect of a repeal of a statute, upon rights or privileges which had accrued under it, nor is it necessary directly to decide whether the repealing act was intended to have a prospective effect only. Whether the act is so far unconstitutional, if, by its terms, it is retroactive, is also immaterial under our statute. It has, however, been held that where the period allowed for redemption by the law under which the sale was made was three years, and before that time [70]*70expired after the sale, an act was passed extending the time for redemption to four years; that such act was unconstitutional, for that it impaired the obligation of the contract of sale. Downing v. Shoenberger, 9 Watts, 298. If the extension of the time for redemption impairs the obligation of the contract of sale as to the purchaser, it may well be inquired whether the reduction of that time or abrogating it entirely will not impair the obligation of the contract of sale as to the owner ?
s_repeal of statute. By our statute, Revision, sec. 29, sub-div. 1, it is provided that “ the repeal of a statute does not revive a statute previously repealed; nor does such repeal affect any rig\t which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed.” Under this provision if not otherwise, the right of the. wife to redeem, having accrued under the law by virtue of which the sale was made, is preserved to her, although such law may have been repealed.
There are many other questions in this case, made by counsel in. their argument; but.since the wife has the right to redeem, which it is not here controverted, she has done ; and since this question legitimately arises upon the record, and has. been fully argued by counsel, and is decisive of the case, it becomes unnecessary to decide any further supposed points made. The judgment is
Reversed.
Wright, Ch. J., dissenting as to the second division of the opinion.