Jones v. Mills County

279 N.W. 96, 224 Iowa 1375

• Court: Supreme Court of Iowa
• Decided: April 5, 1938
• Docket: No. 44076.
• Status: Published

Opinions

HamiltoN, J.

This is a suit in equity wherein the plaintiffs, appellants, asked the trial court to clear their title to certain real estate of a cloud which it is asserted was cast thereon by reason of what is alleged to be a void tax sale, based on an alleged void assessment of such real estate, and injunctive relief is specifically asked against the issuance of a tax deed and the court is also asked to cancel the tax certificate of purchase, and declare the assessment and tax sale void. The trial court refused the relief prayed for and dismissed plaintiffs’ petition and rendered judgment against plaintiffs for costs, and plaintiffs have appealed.

Two propositions are set forth as sustaining appellants’ contention: (1) That the assessment was made in tracts greater than forty acres, in contravention of section 6962 of the 1931 Code of Iowa; (2) that the sale was void because the treasurer did not offer for sale “separately, each tract or parcel of real estate advertised,” as provided by section 7252 of said Code. There is the further contention that as to a small portion thereof the description was too vague and indefinite to support a valid assessment or sale.

It is the contention of the appellees that the assessment was not invalid, but was at most only irregular; that section 6962 requiring real estate to be assessed in parcels of forty acres or less does not apply to land assessed to known owners; that plaintiffs ’ remedy was to go before the local board of review or the state board of assessment and review to correct any irregularities or errors in the assessment, and having failed to resort to such remedy provided by law, they have waived such irregularities and have no standing in a court of equity to correct such irregularities; and, furthermore, that the tax being valid, the alleged cloud upon the plaintiffs’ title could be removed by the simple process of redeeming their property from tax sale by the payment of the taxes, penalties, and costs assessed against the same.

If, as plaintiffs contend, the assessment is absolutely void, then there is no valid tax due, and plaintiffs are right in their contention, and in their demand for equitable relief. Hence, the first question to determine is the validity or invalidity of the assessment.

In the first place, the real estate was subject'to taxation. The method of assessment of property is found in section 7109, Code 1931, which provides that all property subject to taxation shall be valued at its actual value, which shall be entered opposite each item, and except as otherwise provided shall be assessed at 25 per cent of such actual value. Such assessed value shall be taken and considered as the taxable value of such property upon which the levy shall be made. Upon this assessed value the board of supervisors annually at its September meeting makes the levy. Section 7171, Code 1931. The assessment rolls were introduced in evidence and show that the property was assessed to appellants as owners. The land was situated in Secs. 1 and 2, Twp. 73 N., R. 44 W., in Mills county, Iowa. The land in each section was listed separately and so advertised and sold, and separate certificates of purchase issued. The sales represented by the two certificates of purchase show sale for taxes for 1931 and 1932. The property was sold at scavenger sale under section 7255 of the Code, which provides that “each treasurer shall, on the day of the regular tax sale each year or any adjournment thereof, offer and sell at public sale, to the highest bidder, all real estate which remains liable to sale for delinquent taxes, and shall have previously been advertised and offered for two years or more and remained unsold for want of bidders, general notice of such sale being given at the same time and in the same manner as that given of the regular sale.” This sale was held on January 10, 1935, at which time the land, described in the following manner, to wit:

W. y2 N. E. Section 1 Township 73 Range 44

E. y2 N. W. % 1 73 44

N. E. % S. w. yM 1 73 44

W. i/2 N. W. % S. E. % 1 73 44

E. pt. W. 1/2 N. W. % 1 73 44'

W. pt. E. 1/2 N. E. y± 1 73 44

was sold for the taxes for 1931, amounting to $542.50 and for 1932 amounting to $568.76, to Mills county for $175. The sale was en masse and a certificate of purchase issued to the county. Another tract in section 2 was similarly described and sold at the same time for the aggregate amount of taxes, interest, and costs, to the county for the sum of $25, and a separate certificate issued for this sale in like manner.

The assessment roll for 1931 shows each of the subdivisions of the land above described was listed at its net actual value and net taxable value, and these values were set opposite the description of each subdivision, the net taxable value being one-fourth of the net actual value. For example: W. y2 N. E. ti, Sec. 1, Twp. 73 N„ R. 44 W.,

Actual value Taxable value

7505 1876

and so on with each subdivision. All these separate valuations were totaled. The millage rate of taxation was then applied to the total to find the amount of the tax. In other words, the millage rate of tax levy was not applied to each separate valuation of each subdivision and the amount of the tax carried out as to each said subdivision; but the valuation was there, and it can readily be seen that ah owner desiring to redeem any one of these subdivision tracts could have the treasurer figure its pro rata share of the total tax. Each subdivision had a fixed assessed valuation, and the rate of tax would be the same on each separate subdivision.

Appellants’ contention is that each of these descriptions containing more than forty acres is wrongfully or illegally assessed and the assessment void; for example, the west half of the northeast quarter, which contains two forties, and which was assessed at a fixed valuation, is illegal and void for the reason that the tract contains more than forty acres, and is in violation of section 6962 of the Code. They make the same contention with reference to the entire assessment, and also contend that because the sale was not made of each separate forty-acre tract, the sale is also invalid. Of course, if appellants are correct in their contention that section 6962 applies to known owners, then it must be admitted that the assessment is invalid. However, as early as 1868 in the case of Corbin v. De Wolf, 25 Iowa 124, this court held that the provisions of the law now contained in section 6962 of the Code, requiring real estate to be listed in forty-acre tracts or less, did not apply to land assessed to known owners. See, also, Stewart v. Corbin, 25 Iowa 144; Eldridge v. Kuehl, 27 Iowa 160, 170; Johnson v. Chase, 30 Iowa 308; Ware v. Thompson, 29 Iowa 65; Bulkley v. Callanan, 32 Iowa 461; Martin v. Cole, 38 Iowa 141; Smith v. Easton, 37 Iowa 584. While the law as it now appears in a separate section (6962) might be so understood, upon investigation it will be found that sections 6960, 6961, and 6962 were originally all in one section bearing the title “Unknown or Deceased Owners”, (see section 1353, Code 1897) and this meaning is traceable in all the corresponding sections back to section 461, Code 1851. The law was separated into three distinct sections by the editors of the Code of 1924, but there is nothing to indicate that the legislature intended to change the meaning which this court had for many years applied to this provision of the statute.

In the case of Dennis v. School District, 166 Iowa 744, at page 750, 148 N. W. 1007, 1009, this court said:

“It is a rule of construction that changes made by a revision of the statutes will not be construed as altering the law, unless it is clear that such was the intention, and, if the revised statute is ambiguous or susceptible of two constructions, reference may be had to prior statutes for the purpose of ascertaining the intent of the legislature.”

See, also, In re Will of Evans, 193 Iowa 1240, 1244, 188 N. W. 774; Eastwood v. Crane, 125 Iowa 707, 101 N. W. 481. The law in this state with reference to the construction of statutes that have been changed or divided into different sections by the code commissioners is in accordance with the general rule as stated in section 494, 59 C. J., page 897, as follows:

‘ ‘ Change in arrangement. In codifying or revising statutes, a mere rearrangement of the sections or parts of a statute or the placing of portions of what was originally a single section in separate sections does not change the purpose, operation, and effect thereof unless an intention to do so 'already appears. ’ ’

See, also, State v. Gardiner, 205 Iowa 30, 215 N. W. 758. There is a statement cited by appellants from an opinion of Justice Evans in the case of Davison v. Board of Review, 209 Iowa 1332, at page 1339, 230 N. W. 304, which is apparently inconsistent with our view expressed herein, but evidently the eminent jurist had not made a careful analysis of the historical background as to the matter, and this precise question was not under consideration in that case.

We are therefore satisfied the assessment is a valid and legal assessment, and as to any irregularities appearing therein the appellants’ remedy would be before the local board of review (section 7132), or they still have a right to go before the state board of assessment and review and have the same corrected before paying their taxes. This would apply to the indefinite description and overlapping of assessments complained of. See section 6943-c27, subdivision 9a.

Having therefore determined that the assessment of the tax is valid, what standing have the plaintiffs in a court of equity, seeking to enjoin the issuance of a deed upon a tax sale for delinquent taxes validly assessed upon their property, when they have not offered or tendered the taxes due, and have in no way attempted to make redemption of all or any portion of the lands sold ? At the time this suit was commenced, and for aught that appears in this record, this remedy provided by statute by way of redemption was still open, and is still open at this time. At least on two previous occasions the land was offered for sale, presumably in a lawful manner, and under a valid assessment and proper notice of sale, before it was put up at scavenger sale and sold to the highest bidder. Plaintiffs therefore, undoubt edly, had received actual ample notice, in addition to the notice which the statutoiy provisions themselves convey (see section 7251, Code 1931; Wrenn v. Berry, 214 Iowa 1191, 243 N. W. 375), that their taxes were due and delinquent. They now come into a court of equity to cancel a tax sale certificate, without making any showing whatever of doing equity, without making any showing whatever that they cannot remove the cloud, of which they complain, from their title by the simple method of redeeming their property from the tax sale. As to a small acreage of this property, the description is vague and indefinite, but the court would not be warranted in cancelling this entire assessment and granting injunctive relief because of this small item. It could readily have been corrected at any time by the plaintiffs, and can still be corrected by going before the state board of assessment and review.

In a very early case, Burlington & M. R. R. Co. v. Spearman and City of Mt. Pleasant, 12 Iowa 112, this court, in discussing a similar proposition, used this language:

“It is further claimed that the property offered for sale by the said defendant, is too indefinitely described; that a sale under such notice might cloud, but could confer no title upon a purchaser at such sale.

“It is true that the description of the land in the advertisement by the said marshal is vague, and perhaps so much so that a sale ■ thereunder could confer no title. We are unable to hold, however, 'that this is a sufficient reason for restraining the sale. If the taxes are justly due, the sale by the marshal, or a cloud upon the title made by such sale, could be easily avoided by a payment of the tax as levied thereon. ’ ’

And in the case of Shaw v. Orr, 30 Iowa 355, the court said:

“The property assessed was described in the tax list as ‘ Steam Mill in South Lansing. ’ The appellant claims that this description is insufficient. For aught that we know it was the proper description of the real estate as shown by the plat of the town. At all events, it is not denied that it was subject to taxation and was lawfully assessed with the tax charged against it. Under this state of facts plaintiff cannot be relieved from liability for want of a sufficient description of the property to enable a stranger to identify it. ’ ’

See, also, as bearing- generally on this question, the recent case of Witmer v. Polk County, 222 Iowa 1075, 270 N. W. 323.

The law requires the assessor at the time of making the assessment to inform the person assessed in writing of the valuation, etc. See section 7111, Code 1931. . He is presumed to have done his duty in this respect. If there is a cloud cast upon the plaintiffs’ title by this assessment and tax sale, they need not resort to litigation in order to remove the cloud. A plain, speedy, and adequate remedy is provided by law by making a statutory redemption. Hanby v. Snyder, 212 Iowa 845, 237 N. W. 339. They knew their taxes would become due in the regular course as provided by the statute, and no demand was necessary. Code section 7210. They should not be permitted to stand by with a duplicate of the assessment roll in their possession, conveying notice of this assessment and the manner and method by which the property is therein described and assessed, without having made any effort in any manner to change or correct the same by the various methods provided by the statutes of this state, and now come into a court of equity and complain of irregularities and vagueness in description and ask the court to declare the assessment entirely void. If, as they contend, the sale is void, and they desire to redeem from only a portion of the land sold, since the property is properly assessed and each tract valued separately, they could, without the consent of the tax sale certificate holder, ask the county auditor or treasurer to figure the tax on any separate tract and tender the amount of such tax with interest and penalty, and the county would be compelled'to accept it. This would not be true if the sale were valid, for in such event the holder of the tax sale certificate would have to be consulted and give his consent to partial redemption.

We are satisfied that the trial court was right in refusing the plaintiffs equitable relief, and the decree of the trial court is accordingly affirmed.—Affirmed.

StigeR, C. J., and Kintzinger, Donbgan, and Richards, JJ., concur. Mitchell, AndeRSOn, Sager, and Miller, JJ., specially concur.