Atkins v. Paige

Supreme Court of Iowa

Atkins v. Paige

50 Iowa 666

DecidedApril 25, 1879

StatusPublished

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Bluebook

Atkins v. Paige, 50 Iowa 666 (iowa 1879).

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Opinion

Adams, J.

i tax sale- reñom^statute of limitations. The defendant claims that at the time of the sale there was in force a city ordinance by which the right an action to foreclose the right of redemptionfrom a tax sale was limited to five years from fcme 0f saie; the ordinance relied upon relates to an action for the recovery of real property, and not to an action for foreclosure.

The defendant, however, claims that if the action is not barred by ordinance it is by the statutory period of ten years. The action was not brought within ten years from the time the deed was due, but was brought within ten years and six months from that time. The appellee claims that an action for foreclosure could not have been brought before the expiration of six months from the time the deed was executed, and that the statute did not commence to run until the expiration of six months from the time when it might have been executed. In this we think that the appellee is correct. Chapter 105 of the Acts of the Seventh General Assembly provided that the mode of making sales for city taxes effective, and foreclosing the right of redemption, should be the same as provided by the Code in case of sales by the county treasurer. The Code (section 506, Code of 1851) provided for action for foreclosure at any time after six months from day of sale. But, by ordinance, no deed could be made until [668]*668three years from the clay of sale. . Until it was made there was certainly no right of foreclosure, and until it was due the sale could not be regarded 'as' completed. Eldridge v. Kuehl, 27 Iowa, 160; Hintrager v. Hennessy, 46 Iowa, 600. Under the provision of the Code referred to the statute would not, we think, begin to run until six months from the time of completed sale, or, in other words, until six months from the time a deed was due.

But the. appellant claims, as an independent ground of defense, that the tax claim was cut off by the foreclosure of the mortgage. One Allen was the purchaser at the tax sale, and he was made defendant in the action for foreclosure. This fact constitutes the basis of the ajipellant’s claim; Uut we see no evidence that Allen was the holder of the tax claim at the time of the foreclosure.

Affirmed.

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Adams, J.

i tax sale- reñom^statute of limitations. The defendant claims that at the time of the sale there was in force a city ordinance by which the right an action to foreclose the right of redemptionfrom a tax sale was limited to five years from fcme 0f saie; the ordinance relied upon relates to an action for the recovery of real property, and not to an action for foreclosure.

The defendant, however, claims that if the action is not barred by ordinance it is by the statutory period of ten years. The action was not brought within ten years from the time the deed was due, but was brought within ten years and six months from that time. The appellee claims that an action for foreclosure could not have been brought before the expiration of six months from the time the deed was executed, and that the statute did not commence to run until the expiration of six months from the time when it might have been executed. In this we think that the appellee is correct. Chapter 105 of the Acts of the Seventh General Assembly provided that the mode of making sales for city taxes effective, and foreclosing the right of redemption, should be the same as provided by the Code in case of sales by the county treasurer. The Code (section 506, Code of 1851) provided for action for foreclosure at any time after six months from day of sale. But, by ordinance, no deed could be made until [668]*668three years from the clay of sale. . Until it was made there was certainly no right of foreclosure, and until it was due the sale could not be regarded 'as' completed. Eldridge v. Kuehl, 27 Iowa, 160; Hintrager v. Hennessy, 46 Iowa, 600. Under the provision of the Code referred to the statute would not, we think, begin to run until six months from the time of completed sale, or, in other words, until six months from the time a deed was due.

But the. appellant claims, as an independent ground of defense, that the tax claim was cut off by the foreclosure of the mortgage. One Allen was the purchaser at the tax sale, and he was made defendant in the action for foreclosure. This fact constitutes the basis of the ajipellant’s claim; Uut we see no evidence that Allen was the holder of the tax claim at the time of the foreclosure.

Affirmed.

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50 Iowa 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkins-v-paige-iowa-1879.

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