1. Evidence: error without prejudice. I. Upon the trial of the canse, the plaintiff offered in evidence the decree of foreclosure of tax title un(ler which plaintiff claims, rendered by the Dis-Court of Marshall county, at the April Term, pgg^ }n a cause entitled, “ Thomas B. Abell v. N. E. ¼ of sections 26, 84, 19, et als.,” then pending in said court. The defendants objected to the introduction of the decree, on the ground that the whole record, including the pleadings, &c., on which said decree was based, must be introduced with it. The court sustained the objection; and excluded the decree, and this ruling is assigned as the first error.
Immediately after the court had thus excluded the decree, the plaintiff offered the same decree, together with the pleadings and papers in the cause, all which were admitted in evidence, and was all the evidence in the case whereby the plaintiff had the full benefit of the decrpe; so that, even if there was error in first excluding it, such error was cured by afterwards admitting it, and thus the ruling became error without prejudice, and, therefore, not available on appeal. Gilson v. Johnson, 4 Iowa, 463; Latterett v. Cook, 1 Iowa, 1, and authorities cited.
2. Service of notice: jurisdiction./ II. It appears from the original papers, in the tax title foreclosure case, which were, together with the decree, introduced in evidence, that the original notice in that case was placed in the hands of the sheriff on the 81st day of December, 1858, and on that day was by him returned “ not found.” On the same day an order was made by the clerk for service of notice by publication, for four weeks successively, in the Marietta Weekly Express, as provided by chapter 191 of the Laws of 1856-7 (6th General Assembly), page 304. The original notice was published accordingly, and the description of the land in controversy, which is S. E. J, sec. 9, town
In some of these cases it is not expressly stated, that such affidavit or proof is essentially jurisdictional, but it is uniformly held, that to enter a default without such affidavit was unwarranted. In others of the cases the question
3. - Recital in decree. The decree contains the following recital: “And it appearing further and being proved to this court, that the residence of the owner of said lands are unknown to the plaintiff, so that a copy of said original notice and petition could not be sent to or served upon them, and said defendant and said lands failing to appear and plead, &c.” Without now determining what effect should be given to a recital in a decree of the compliance with the requirements of § 1826, it is clear that the recitals in the decree introduced in evidence do not show such compliance. The statute requires the affidavit to show not only that the residence is unknown to plaintiff, as in this case, but also that the same “ could not with reasonable diligence be ascertained.” In this case there was no showing of any diligence, nor a recital even that any diligence was used. The recitals, therefore, do not aid the plaintiff, since they fail to show a compliance with the statute.
This case is, therefore, strictly within the rule laid down by this court in the case of McGahen v. Carr, supra, and also within the doctrine announced in the other cases cited, and the rule, stare decisis, compels us to hold that the decree in the foreclosure case is absolutely void and conferred no title upon plaintiff.
6. tax sjaiR We are also inclined to hold that the original notice, if properly served, would amount to no sufficient notice as to those lands sought to be described by the substitution of the letter “a” for the figure “8.” Gaylord v. Scarf, 6 Iowa, 179. Proceedings ex parle to divest the owner of the legal title to his real estate, for failure to pay a small amount of taxes, often the result of oversight, accident or mistake, are both by reason and authority required to conform strictly to the laws authorizing them.
The j udgment is
Affirmed.