Stevens v. Murphy

59 N.W. 203, 91 Iowa 356

• Court: Supreme Court of Iowa
• Decided: May 23, 1894
• Status: Published

Opinion

Granger, C. J.

The issues of the case are such that if the return of service off the notice is sufficient, the tax deed is valid. If not sufficient, the deed is invalid, and the right of redemption still exists. It-should be noticed that nothing in the notice or return, shows, in any way, that Lorack was an agent or attorney for Novak. No question is made as to the fact of service of the notice, but merely as to the sufficiency of the return thereto. It is provided that the period of redemption shall not expire “until ninety days after the service of said notice of the right of redemption.” But the service is not complete upon the mere fact of service-upon the party in one of the methods prescribed, which, are those for the service of an original notice; but, to-complete the service, the notice must be filed with the-treasurer, and there must be with it an affidavit showing, the particular mode of service, and it must be “signed, and verified by the holder of the certificate of purchase, his agent or attorney.” All of these facts are essential, to vest the treasurer with authority to execute a deed, and the manner of the proof of the facts to give such, authority, is prescribed by the statute. The deed in this case did not issue upon any showing that the service-was made by an agent or attorney. The treasurer could no more ássume such a fact than he could other important facts required to appear in the return. It can be-said in this case, as it was in Ellsworth v. Van Ort, 67 Iowa, 222, 25 N. W. Rep. 142: “When the treasurer-executed the deed in question, then he had no competent evidence on file in his. office that the notice had been served.” We italicize the words “on file in his-office” to more particularly indicate the proof that will justify the execution of a deed. It is further said, in. the same connection, in that case: “And, in the absence of such evidence, we think he had no authority to execute the deed.” And, further, it is said: “The-service is not deemed complete until it is filed with the treasurer.” The holding in that case means that, before the treasurer can issue the deed, all the facts-■essential to the authority to do so shall appear in the files of his office. The fact that the proof of service was made by one authorized to make it,. is claimed to be important. If it should be conceded, as it is claimed in ■this case, that Lorack was actually an agent for Novak, it could make no difference, for the fact only appears by oral proofs in this case. This view is aided to some ■extent by Association v. Smith, 59 Iowa, 704, 13 N. W. Rep. 849; Sweeley v. Van Steenberg, 69 Iowa, 696, 26 N. W. Rep. 78; and Ellsworth v. Cordrey, 63 Iowa, 675, 16 N. W. Rep. 211. There is nothing in Babcock v. Bonebrake, 77 Iowa, 710, 42 N. W. Rep. 559, not in barmony with the rule announced in this case. The judgment is aeeirméd.