Hewitt v. Morgan

55 N.W. 478, 88 Iowa 468

• Court: Supreme Court of Iowa
• Decided: May 23, 1893
• Status: Published

Opinion

Robinson, C. J.

In the year 1859 a patent for the land in question was issued by the United States to the defendant Morgan. On the twenty-sixth day of August, 1871, the treasurer of Sioux county executed and delivered to William H. Gurley a tax deed, for the land, which purports to be based upon a sale for delinquent taxes of the years 1864, 1865, and 1866, held on the third day of August, 1868. Subsequently conveyances of the land were made as follows: By Gurley to Laura Chamberlain; by Laura Chamberlain to Gurley; "by Gurley to John Koster; by John Koster to Jacob Koster; by Jacob Koster to the plaintiff; by the plaintiff, of an undivided one-half of the land, to 'A. Yah der Meide, and by Mm of an undivided one-half to the-plaintiff.

The defendant alleges that the tax deed conveyed, no title, and is void for various reasons set out in the-answer. In a pleading styled a “cross bill” he avers-that he is the owner of the land in question; that the-plaintiff claims some interest in it by virtue of the tax deed, and that Hurley makes some claim as the holder of a mortgage thereon, executed to him by J. Koster, based upon the tax deed, but that the tax deed is void, for reasons stated in the answer. The defendant asks-that the petition of the plaintiff be dismissed; that the-tax deed be declared null and void; that the record thereof be held for naught; that the mortgage be-declared null and void; that the plaintiff and Hurley beestopped to claim any right in the land adverse to the-defendant; and that the title thereto be established and confirmed in Mm.

The plaintiff, in his reply to the answer, and answer to .the cross bill, and Hurley, in his answer to-the cross bill, plead various matters in support of their title. In addition to the conveyance described, both the plaintiff and Hurley claim under a deed alleged to-have been executed by the defendant to one Marcus T. Sacia, and' under a deed from him to Hurley, but the' defendant pleaded, and the district court adjudged, that the pretended deed to Sacia was forged. As the plaintiff does not appeal, he can claim nothing in this court-under the deed to Sacia, but must rely upon the tax title. The other issues were found by the district, court in favor of the plaintiff, and a decree was rendered quieting his title, and dismissing the cross bill. The defendant served his notice of appeal only on the-the plaintiff and the clerk. Hurley does not appeal,, and is not a party to the proceedings in this court.

1. tax title :.ac-recording of' evidence. I. The appellant contends that the appellee must, fail because there is no evidence that the tax deed waa ever recorded. When it was offered in evidence, the defendant interposed to it nine objections, which cover nearly all of a printed page of the abstract. The eighth objection is stated as follows: ‘ ‘Because tax deed is not properly acknowledged, indexed, and recorded as required by statute.” The appellant now insists that this objection was well, founded. We find no competent evidence to show that the tax deed has been recorded, but we find that such evidence was not necessary. The petition alleges that the deed was “recorded in Becord number 1, at page 26, of Sioux county records.” That statement is not denied in any pleading filed by the defendant, and must, therefore, be taken as admitted. Moreover, in his answer the defendant, as a basis for affirmative relief, alleges “that the said pretended tax deed, and the record thereof, '* * * constitute a cloud” upon his title. Among the numerous defects in the plaintiff’s title alleged by defendant in his answer and cross bill, a failure to record the deed is not charged. No issue in regard to the recording of it was presented by the pleadings, and none could be raised by objection when the deed was offered in evidence. We are satisfied that a failure to record the deed was not urged as an objection in the district court, and it can not be insisted upon for the first time in this court. The condition of the record requires us to presume that, the deed was not only recorded, but that it was recorded properly.

2. deed: defectÍdg¿ent:°lorlele eYi-ri’s ence' II. It is next urged that the deed from Grurley to Laura Chamberlain is not so acknowledged that it can he received in evidence. The objection is founded upon the fact that the seal of the notary public who certified the acknowledgment in the state of Ohio is defective. On it are engraved only the words “Notarial Seal,” the name of the county in which the certificate was made, and the letter “0” for the name of the state. The law of the state of Ohio in regard to such seals is not shown. In this state the seal of a notary public is required to have engraved on it the words “Notarial Seal,” the name “Iowa,” and the surname, and at least the initials of the Christian name, of the notary. Code, section. 259 (I). In the absence of proof to the contrary, it will be presumed that the requirements of another state in which an acknowledgment is taken are the same as those of this state. Stephens v. Williams, 46 Iowa, 540. If the admissibility of the deed in evidence depends upon the sufficiency of the seal, the deed must be rejected as not having been shown to be acknowledged as required by the laws of this state.

3____ terfal.lmma" III. But the rejection of the deed as evidence can not affect the decision of the case, for several reasons, which may be stated as follows: The petition alleges that Curley conveyed the land to Laura Chamberlain, and that averment is not denied in the pleadings of the defendant. If a conveyance to Laura Chamberlain is not shown, itv does not appear that Curley parted with his interest in the land until he conveyed it to John Koster. Curley testified, without objection on the part of the defendant, that he at one time owned the land, and sold it to John Koster. The deed in controversy was good between the parties to it without an acknowledgment. As the defendant acquired the interest in the land which he claims before the d'eed was executed, he has not been affected by any want of notice of the deed,, nor by any defect in its acknowledgment. We think the conveyance to the plaintiff of the rights created by the tax deed is both admitted and proved. There was no real controversy in the district court, in regard to it.

•4. tax title: aeílciUs onSfik-" title* estoppel, . IV. The appellant insists with much earnestness that the tax deed is absolutely void, for reasons stated as follows: “First. There was no tax sale in substance or in fact. Second. No taxes were levied in Sioux county for 'either of the years in question. Third. Said sale purports to have been made on August 3, 1868, and before that date the treasurer, by an adjournment of more than two months, had been divested of any authority to proceed with such sale. Fourth. The tax sale certificates upon which the tax deed in question was based .had been settled for and canceled by Sioux, county long before the execution of the tax deed.” The sale in question was in all material respects like that considered in Mathews v. Culbertson, 83 Iowa, 434. The objections now made to the sale and to the tax deed were urged in that ease, and the evidence to support them is substantially the same in both cases. The sale involved in this case was made for the delinquent taxes of the same years as the one questioned in that, and also for the delinquent taxes of 1864, but the same rules .govern both sales and both deeds. The land in question was taxable in the year 1860 and subsequent years. The defendant did not pay them for any year after that of 1863. The land was sold for the delinquent taxes of the years 1864, 1865 and 1866. The plaintiff and his grantors paid the taxes ’for the year 1867, and for all subsequent years, to and including the year 1888. The plaintiff has possession of the land, and he and his grantors have had such possession since the year 1885. Prior to that time it had been unimproved and unoccupied. The defendant states that he has paid taxes on the land within less than twenty-five years, but is unable to state when he made the last payment. He says that prior to the year 1872 he sent money to the treasurer of Sioux county, but that no receipt for it was given. In that year one of his nephews visited Iowa, and by request of the defendant made an examination in regard to the land, and reported that it had been sold for taxes, and that the time in which redemption could have been made had expired. About the first of the year 1884 he spoke to another nephew in regard to-the land, and in the spring of 1886 that nephew caused an action to be brought in a district court of this state-which was transferred to the United States circuit court. Very little is shown in regard to that action excepting,, that the plaintiff, Jacob Koster, Van der Meide, and Grurley were made parties defendant, and the questions-raised by the pleadings were the same as those in issue-in this action. The action was dismissed, apparently without a hearing, and without an adjudication on the-merits. Nothing whatever which in any manner tends-to excuse the delay of the defendant in protecting and asserting his title is shown. The evidence does not justify us in concluding that he paid, or attempted to pay, taxes for any year since the year 1864. When he stopped paying taxes, the land was of but little-value, and there does not appear to have been any demand for it. In its immediate vicinity there was an abundance of land owned by the United States, and it may be that the defendant discontinued the payment of' taxes for that reason. At least that is the most probable one suggested by the record. The plaintiff acquired' title with constructive notice of the condition of the Sioux county records and the facts which they disclosed, and had knowledge of the claims of the defendant as-made in the action which he instituted in the year 1886. It is not shown, however, that the Kosters had any knowledge of the claim of the plaintiff when the conveyances to them were made, and the plaintiff is entitled to the rights which they acquired as purchasers in good faith.

It was said of the appellants in the Mathews case that they had failed to make that showing of merit and diligence which is required to justify the interference off a court of equity in' their behalf. The reasons upon. which, that conclusion is based are applicable to this-case, and we must hold, not that the tax sale in question is valid, but that the negligence of defendant has-been so great that he is not entitled to the assistance of a court of equity to ascertain whether his claim in regard to the sale and deed are well founded. The-appellant contends bhat laches is available only as a defense, and that, if plaintiff wishes to rely upon it, he-should have remained quietly in possession of the land until suit was brought to recover it, when he might-have based his defense upon such laches. The answer to that is that the tax deed appears on its face to be-regular, and to have conveyed a good title to the land. The plaintiff is in possession under the deed and is entitled to maintain and protect his possession as against-adverse claims, which are not so grounded that a court-will enforce them. The defendant makes adverse-claims, but they can be enforced only by setting aside the tax deed. As he is not entitled to have that done, he has no claim which a court will recognize, and, therefore, the title of the plaintiff should be quieted as against-the claim he makes.

We conclude that the decree of the district court is-correct, and it is affirmed.