McCash v. Penrod

109 N.W. 180, 131 Iowa 631

• Court: Supreme Court of Iowa
• Decided: October 16, 1906
• Status: Published

Opinion

Deemer, J.—

1. Action TO quit ofTpIfoof’Uden limitation. Plaintiff holds a tax deed for the lot m controversy, regular upon its face, issued by the treasurer of Lee county, Iowa, on October 24, 1885. This makes out a Pr^ma facie case for him, and the burden is upon defendant to establish its invalidity, Even if this be established, plaintiff may show title by adverse possession, even under a void tax deed. If the tax deed be simply-irregular, and not void, plaintiff is entitled to a decree for the reason that defendant’s attack upon the deed is barred by section 1448 of the Code, which forbids such attacks after five years from the execution and recording of tax deed.

2‘ T ambiguity: §eneefvl The land was sold for the taxes of the year 1881, and it is claimed that no taxes were due when the land,,was sold. This is on the theory that the taxes on outlot 7 were paid as s^own by the tax list. It is true that the tax list shows an entry of payment of taxes on lot 7, and payment by sale for taxes of the taxes on lot 8 ; but the other records and the tax deed show a sale of lot 7, and not of lot 8, and evidence aliunde establishes the fact that the taxes were paid on lot 8, and not upon lot 7. That parol. testimony is admissible, notwithstanding this showing on the tax list, see Ambler v. Clayton, 23 Iowa, 173. Defendant was in no manner misled by this entry, and he has failed to show that the taxes on lot 7 were paid when it was sold. There is an ambiguity on the face of the records, and parol evidence is admissible to explain it. Consideration of this testimony leads to the conclusion that the taxes were not paid on lot 7 when the sale was made.

3. Taxation: discrepancy in names. II. The land was sold at tax sale to one D. W. Henry, and he received the certificate of sale. Thereafter he assigned his certificate to Jámes Harney, and the tax deed under which plaintiff claims was issued to James Carney. Notation of an assignment

of the certificate appears upon the tax sale register as follows: “Assigned to James Harney, February 4th, 1885.” Hnder the holdings of this court no notation of the assignment of the certificate was necessary, provided the person to whom the 'deed was made was in fact the holder of the certificate. Soukup v. Union Investment Co., 84 Iowa, 448; Swan v. Whaley, 75 Iowa, 623. There is no doubt that James Carney was the holder oí the certificate by assignment, and the mistake in his name is of no consequence. The record shows that James Carney and James Harney were one and the same person, and that James Carney is the person who held the assignment of the certificate. III. Complaint is made that the notice of redemption was not served upon the owner, who, it is said, was in possession of the land. The land was taxed in the name of H.

4. notice of redemption. O. Long, who was & non-resident of the State, an(j notice> -which was directed to him, was by publication. No one was in actual possession of the land when the time came for the notice; hence the notice was sufficient, American Bank v. Crooks, 97 Iowa, 244.

5. Idem sonans. IV. The notice was in the name of James Karney and the affidavit as to publication was in the name of James Carney. This is said to be a fatal defect. It is a clear case of idem sonans. Fletcher v. Conly, 2 G. Greene, 88; Kreitz v. Behrensmeyer, 125 Ill. 141 (17 N. E. 232, 8 Am. St. Rep. 349). But, if the notice or affidavit were defective, defendant is foreclosed from attacking the same by reason of the' statute hitherto referred too. See Trulock v. Bentley, 67 Iowa, 602; Bolin v. Francis, 72 Iowa, 619; Rice v. Haddock, 70 Iowa, 318.

6. Adverse possession. V. But, aside from all this, the testimony shows that plaintiff and his grantors have been in the actual, notorious, and exclusive possession of the land in controversy under the tax deed for more than ten years prior to 1903, the time when defendant went into pos-

session. Even were the tax deed absolutely void,, it would be sufficient color of title upon which to base a claim of adverse possession. No one ever questioned plaintiff’s title until just before this suit was brought, which was nearly twenty years after the issuance of the tax deed. This alone gave plaintiff title to the land. Watters v. Connelly, 59 Iowa, 217; Tremaine v. Weatherby, 58 Iowa, 615. Moreover, and as a conclusive answer to appellant’s contentions, it does not appear that he is the owner of the land and entitled to question the tax deed. True, he shows

7. quieting TITLE-some conveyances from the government down to Sourwine, his immediate grantor; but no one can take these conveyances and locate the property in controversy as belonging to defendant. Some of the conveyances are so indefinite and uncertain in the descriptive parts as to be utterly void. Eor instance, one of the conveyances describes the land as “ the east part of lots 7 and 8 ”; another as “ the east part of lots 7 and 8, less about 19 acres sold off the east part to Peele and Haines ”; and there is no showing as to any deed to Peele and Haines. The description in defendant’s own deed is, “ East part of lots 7 and 8, . . •. less about 19 acres off tbe east part of the land described as lots 7 and 8, leaving from 17 to 20 acres’, being same land bought of E. E. Gray.” No one can tell from these descriptions what was intended to be conveyed, and a court, if called upon to render a decree for defendant, could not describe the land awarded to him. Tucker v. Carlson, 113 Iowa, 449; Armour v. Officer, 116 Iowa, 675.

The trial court was right in entering a decree for plaintiff, and it is affirmed.