Ellsworth v. Low, Adams & French

17 N.W. 450, 62 Iowa 178

• Court: Supreme Court of Iowa
• Decided: December 5, 1883
• Status: Published

Opinion

Seevers, J.

I. Tbe validity of tbe tax deed depends upon tbe question wbetber redemption was made prior to tbe expiration , 1. TAX sale: from“Pwiien right expires. of ninty days after completed service of J J I ^e notice required by section 894 of tbe Code, qqie no£[ce was by publication in a newspaper, and tbe service was completed by making tbe required affidavit, on tbe 25th day of August, 1880, and filing tbe same in tbe office of tbe county treasurer. Tbe redemption is claimed to have been made on tbe 24th day of November, 1880, wliicb was ninety-one days after tbe completed service of tbe notice. Tbe deed, however, was not executed until tbe 27tb day of November, 1880. But tbe riglit to redeem expired on the 23d day of November, 1880, wbetber tbe deed was executed then or not. Pearson v. Robinson, 44 Iowa, 413. Tbe deed is prima faeie evidence that tbe notice bad been properly and sufficiently served on the right person. Code, § 897, Reed v. Thompson, 56 Id., 455. This being so, tbe burden is on tbe defendant to show that it was not so served. Tbe statute requires tbe notice to be served “upon the person in possession of tbe land, and also upon tbe person in whose 2.-: notice person i™ °n constitutes possession. name tbe same is taxed, if such person resides in the county where tbe land is situated, in tbe manner provided by law for tbe service of original A ^ ° notices.” Code, § 894.

Under tbe foregoing, if tbe person in possession, or to whom tbe land is taxed at tbe time tbe notice is served, resides in tbe county, tbe notice must be personally served on liim; but if be is a non-resident of tbe county, tbe service may be made by publication in a newspaper. In tbe case at bar, tbe notice was served by publication only. It is insisted that this is insufficient, because one Dennison was in possession, and tbe land was taxed to him at tbe time tbe notice was served as above stated. We are unable to find tbat tlierc is any evidence tending to show to whom tbe land was taxed in August, 1880. Tbe evidence as to any one being in possession of tbe land is as follows: “One Dennison owned tbe land at tbe time it was sold for taxes, and be then, and has. ever since, resided in tbe county in which tbe land is situated. Dennison bought tbe land for a wood lot; be got bis wood there for several years, and conveyed tbe land back to Warren. No one lived on tbe land * * . It is unfenced brush land — timber has been taken off. No one saw Dennison on tbe land, but be was seen hauling wood therefrom. It never was occupied nor used by any one except for the timber, and since tbat has been taken off nothing has been done on it.” When Dennison ceased to take wood or timber from tbe land does not certainly appear. Tbe land was evidently unsuitable for cultivation, and wras used for and as a timber lot. Tbe possession of Dennison was such as is usual in such cases. He took timber therefrom from time to time as be desired, and such use, occupation and possession was, we think, sufficient to put any one-on inquiry as to why or under wliat right tbe possession was claimed. As Dennison was in possession at the time tbe land was sold for taxes, and be was then tbe owner, bis possession must be presumed to have continued until tbe contrary appears. We think it sufficiently appears that Dennison was in possession at tbe time The foregoing notice was published, and tbat, as be was a resident of tbe county, it’should have been served on bim. Because it was not, tbe right of redemption was not cut off.

II. Tbe defendants claim that' tbe redemption was made by Otis Warren, administrator. Tbe county auditor was a witness, and a record or book containing tbe redemption from 8“:rtub"B<?f0M-tmcateTex61'" tioerlouítry ^ax sa^es was brought into court by bim, and tbe defendants offered in evidence the “stub” of a redemption certificate describing tbe land in controversy. This evidence is objected to as incompetent, and because it is a recold not known to tbe law. But we think otherwise. It is a “record belonging to the office of the county auditor,” and is by statute made evidence of the matters stated therein. Code, § 905. The “stub” so introduced shows that redemption had been made by Otis Warren, administrator. Across the face of the stub there was written the following: “This redemption canceled by reason o.f the time specified by the Code of Iowa having expired, and that fact not noticed by me at the time redemption was made or being made.” This was signed by the county auditor, and is dated three days after the redemption was made. It is evident that the party making the redemption is not bound by this action of the auditor, unless he or his agent acquiesced therein and surrendered the certificate and received the money paid as for redemption. We find the fact to be from the evidence that the certificate was not returned or the money- refunded.

The evidence shows that Isaiah Warren at one time owned the land, and he conveyed to Dennison, who executed a mortgage to Isaiah Warren to secure the purchase money. At the time redemption was made, the mortgage was in force and unpaid. The mortgage was introduced in evidence. The evidence shows that Isaiah Warren is dead, secondary sufficient when not oh-iected to. Otis Warren is his administrator. It is ob-iected that this evidence is insufficient to prove the fact of the death of Isaiah or that Otis Warren is administrator. But as no objection was made to the evidence introduced in the court below, we think the objection now made' that it is not the best evidence comes too late. Of course, any one who knows the fact of the death of a person may testify thereto; and a witness testified that Isaiah Warren had been dead for several years. If an objection had been made, there was record evidence of the appointment of an administrator. The defendants might have been able to bring in tbe record. Otis Warren, administrator of 5. tax sale : t>y mortgagee, Isaiab Warren, bad tbe right to redeem because of his mortgage interest in tbe real estate, and we find that be did so.

III. Tbe defendants are judgment creditors of Dennison, and this judgment is a lien on tbe land. Tbe redemption 6(iemption"i>y Sen "holders8^ i'encfltof an. made by Warren will inure to their benefit. When the redemption was made, tbe title and liens on tbe land thereafter stood and existed in tbe same manner as though no sale for delinquent taxes bad ever been made.

Affirmed.