Byam v. Cook

21 Iowa 392

• Court: Supreme Court of Iowa
• Decided: December 10, 1866
• Status: Published

Opinion

Dillon, J.

i. tax sataí : masse. The plaintiff’s tax deed recites “ that whereas the following described real property, viz.: [then follows a description of fourteen (14) different amd distinct parcels of landj was subject to taxation for the years 1858 and 1859, and whereas the taxes assessed upon said real property for the years aforesaid, remained due and unpaid [here follows recital as to time amd place of sale]. And, whereas, at the time and place aforesaid, N. M. Day, of, &c., having offered to pay the sum of sixty-eight dollars and ninety-one cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property for the whole of the south-east quarter, &c. ['then follows a description of the fourteen different parcels, as before]. And whereas Hannah M. Day, administratrix of the estate of N. M. Day, did, on the 5th day of November, A. D., 1863, duly assign all the right of estate of said Day to the certificate of the sale of the property as aforesaid, to E. C. Byam; and whereas three years have elapsed, &e.

“Now, therefore, I, William Cook, treasurer of the county aforesaid, in consideration of said sum,” &c., then follows the granting part of the deed, which bears date December 2,1863. By comparing this deed with the one in Boardman v. Bourne (20 Iowa, 131), it will be seen that it is precisely like that, inasmuch as it shows on its face a sale en masse of several distinct parcels of land for a gross sum. We hold in this case, as we did in the one just referred to, that the deed is void upon its face.

This leaves the plaintiff without a deed, and therefore without any consummated tax title.

The referee, therefore, erred in finding that “ the tax deed vested in the plaintiff the interest in said land” acquired by the vendee of the school fund.

The tax deed, standing alone, vested the plaintiff with no title whatever.

2_estop_ peU But the -plaintiff says, admitting. the tax deed to be void, for the reason named, still the tax certificate shows a sale in parcels and not in a lump; the defendant, in his capacity as county treasurer, made the deed and made it wrong — he is therefore estopped to make the objection that it is void; or if not estopped, the court can' now decree him, though out of office, to make á good deed, one which conforms to the tax certificate. Blackwell, 2d ed., 374, p. 11.

To this position we answer, that there is nothing shown which would render it just, to apply to.the defendant the doctrine of estoppel.

3. decree : petition? To the position that the court can now decree the defendant to make a good deed, we answer that the pleadings are not framed with any such view, nor is such relief sought therein ; -on the contrary, the petition is framed upon the assumption.that the deed is good.

Again (and this is an insuperable objection to the claim of the plaintiff, which wé are now considering), the tax certificate in evidence, while it shows separate sales of the different forties of the land therein described, locates it as in range six, while the petition, tax deed and patent locate it in range seven.

In this view of the case it is not necessary to decide whether the certificate of sale should have been assigned by the heir or the administratrix/ nor the further question, whether the administratrix, with the will annexed, could execute the power given by the will to sell property; nor the still further question, what effect would be given to the subsequent quitclaim deed from the residuary devisee.

The decree helow is reversed, and the plaintiff’s petition dismissed, but without prejudice to his right to institute proceedings to obtain a valid tax deed, if he is thereto entitled, and without prejudice to his rights under such deed if one shall be obtained. Blackwell,- 2d ed., p. 372, pi. 10.

Reversed.