Moriarty v. Boone County

39 Iowa 634

• Court: Supreme Court of Iowa
• Decided: October 23, 1874
• Status: Published

Opinion

Day, J.

The property of the United States is exempt from taxation. Government lands, entered or located, are not taxable for the year in which the entry or location was made. Revision, section 711. The land in question was sold for delinquent taxes of 1865 and 1866. The real question is, had the property, prior to the levy of the taxes for either of these years, ceased to be the property of the United States in such sense as to be liable for taxation?

The homestead act was approved May 20th, 1862. It provides that any citizen of the United States, or one who has filed his declaration of intention to become such, who is the head of a family, or has attained the age of twenty-one years, and has never borne arms against the United States, shall be entitled to enter one quarter section of unappropriated lands, subject to preemption at one dollar and twenty-five cents or less per acre, or eighty acres subject to preemption at two dollars and fifty cents per acre, and that upon filing a specified affidavit with the register or receiver, and the payment of ten dollars, he shall be permitted to enter the quantity of land specified, provided that no certificate shall be given or patent issued until after the expiration of five years from the date of entry; and that if, at any time after the filing of the affidavit, and before the expiration of the five years, it shall be proven to the satisfaction of the register of the land office that tire person having filed such affidavit shall have actually changed his or her residence, or abandoned the land for more thau six months at any one time, the land so entered shall revert to the government. Lester’s Land Laws, Yol. 2, page 45.

l. taxation: liomestead's: entry. The plaintiff settled upon the land in dispute in December, 1862, and upon the 15th day of July, 1863, he filed the declaratory statement provided for in the homestead act. He had occupied the lands but little more than fom, yeargj wpen they were sold for the delinquent taxes of 1865 and 1866. It seems to us to be clear that, the lands were not taxable for those years. If subject to taxation at all, they must have been so subject because of their condition at the time the taxes were levied. The fact that a year after the sale final proofs were made, and the patent was afterward issued, cannot modify or affect the condition of the property at the time the taxes were imposed. If they were liable to taxation at that time, it follows that they must have been subject to all the incidents of that liability. The taxes imposed must have become and remained a lien upon the land, and three years from the date of sale, no redemption being made, the purchaser became entitled to a deed vesting in him all the interest and estate of the former owner, and of the state and county.

But, suppose after the tax sale the person making the homestead entry should abandon his actual residence upon the lands for a period of more than six months. In that, case what becomes of the lien foi delinquent taxes, and what interest does the treasurer’s deed convey? The land reverts to the government, the lien-is extinguished, and the deed of the treasurer becomes mere waste paper. These considerations, it seems, must be conclusive of the proposition that, prior to the expiration of five years from filing the declaratory statement, the person seeking to avail himself of the ¡movisions of the homestead act, acquires no taxable interest. It is conceded the legal title need not of necessity vest in one before he becomes liable for taxes. But he must have a more tangible. interest than one dependent upon continued occupancy for its existence, and liable to annihilation by an absence of six months. No case can be found in this State in which such an interest as the one under consideration has been held liable to taxation. All of them will be found to be cases where some corporation or individual, although not possessed of the legal title, yet is in a position to be entitled to a patent from the United States. See Stockdale v. The Treasurer of Webster County, 12 Iowa, 536; Stryker v. Polk County, 22 Iowa, 531; Iowa Homestead Co. v. Webster County, 21 Iowa, 221; Dubuque and Pacific Railroad Co. v. Webster County, Ib., 235; The Cedar Rapids & Mo. R. R. Co. v. Woodbury County, 29 Iowa, 247,

2 _:_. • Appellant seems to rely upon the provisions of Section 711, sub-division 7, of the Revision, providing that government lands, entered or located, shall not be taxed for the year in which the entry or location is made, and the homestead act providing that the person entitled to the benefit of its provisions, upon making the proper affidavit and paying ten dollars, shall be permitted to enter the quantity of land specified. It is claimed that, upon such entry, the land becomes liable for taxes the following year, under Section 711. This section of the Revision was enacted before the homestead law, and the words “locate and entry” are used in the sense in which they were then understood. Under the laws then in force, the location or entry entitled the person making it to a receipt, which was evidence of title.

At the time of levying the taxes in question, the land in controversy was, in such sense, the property of the United States, that it was not subject to taxation.

The judgment of the District Court is

Affirmed.