Barrett v. Love

Servers, Ch. J.

I. There was a jury trial, and general verdict for the defendant. There were also special findings by the jury as follows:

1st. Do you find that defendant Love hauled out rails, posts, and logs, and placed same on the land in controversy; and, if so, when did he commence doing so ?

Answer: Yes, about 1st of March, 1872.

2d. Did defendant himself, .or with himself and others, burn the old grass off the land in controversy, for the purpose of preparing the same for cutting hay thereon; and if so, when ?

Answer: Yes, in spring of 1872.

3d. Did defendant cut the grass on the premises in controversy, and give others permission to do so, on the shares, during the haying season of 1872?

Answer: Yes.

4th. When, if at all, did defendant Love undertake to build a fence on the premises in controversy ?

Answer: In the spring of 1872.

5th. Did he permanently abandon such undertaking ?

Answer: No.

6th. When, if at all, did defendant actually inclose the premises in controversy with a fence ?

Answer: In spring of 1873.

7th. That if you find the defendant was in possession of said land, prior to the commencement of this suit, please state how long he had been in possession, and when'such possession commenced ?

Answer: Since the summer of 1872. Commenced in March, 1872.

8th. Did James Callanan have any knowledge of such acts, and acquiesce in them; and if so, when did he gain such knowledge ?

Answer: In June, 1874.

During the trial the plaintiff objected to any evidence tending to show that defendant had cut grass on the premises dining the summer of 1872, because it neither proved ownership nor possession. While if there had been no other testimony tending to show possession, the evidence objected to may lave been immaterial, still we think it was admissible as tending to show, in connection with the other testimony on the same subject, that defendant was in possession at that time. The evidence tended to show the facts found by the jury in the special findings other than the one in relation to cutting grn,ss, and it is not seriously claimed, we think, these findings are against the weight of the evidence. If, however, we are mistaken in this, such findings, under the settled and uniform rulings of this court, cannot be disturbed or set aside.

II. The plaintiff asked a witness the following question: ■“State what, if anything, you know of this property in controversy being improved by Mr. Love. ” To which the defendant objected, an the ground of immateriality', and the court sustained the objection. The value or extent of the improvements was wholly immaterial, except as it may have tended to prove or disprove the defendant’s possession of the premises. The material question was one of possession, and mot improvement. There was no error, therefore, in the rilling made by the court.

1. tax deed: bareed” III. It is conceded the tax deed, under which plaintiff claims, was recorded on the 28th day of January, 1868, and the jury have found, as a fact, that the defendant’was in possession in March, 1872. The presumption is such possession was continuous from that time forward, and the petition states that defendant was in possession at the commencement of the action, in August, 1874. It, therefore, clearly appears that defendant was in possession in January, 1873, when five years from the recording of the tax deed expired.

It is insisted by the plaintiff the statutory bar does noi apply to the purchaser, when the land was unoccupied at tbe date of the sale or recording of the deed, and, on the other hand, the defendant claims the statute begins to run from the recording of the deed; or, if this be not true, then as he was in possession for ten months previous to the expiration of the five years, the bar of the statute is complete. The statute is as follows: “No action for the recovery of real property sold for the non-payment of taxes shall lie, unless the same be brought within five years after the treasurer’s deed is executed and recorded. ” Rev., § 790; Code, § 902. Nothing is said as to possession, but the statutory bar seems to be complete at the expiration of the five years. If, after the expiration of that period, either the purchaser or the owner is compelled to resort to an action for the purpose of .vindicating his title or possession, the bar of the statute operates on and is decisive that the action cannot be mainlined. No distinction is made between the purchaser and owner; both are alike subject to the provisions of the statute. This is the effect of the ruling in Brown & Sully v. Painter, 38 Iowa, 456.

It is true that in Wisconsin and Pennsylvania it is held, if no one is in possession until after the prescribed period of limitation has expired, the title of the purchaser is complete and perfect, and if the owner’ then enters into possession the purchaser may then have his action tp recover such possession. It is also held in Pennsylvania that ihe statute does not begin to ran. against the purchaser until he has taken possession. Wain. v. Shearman, 8 S. & E., 357. After this decision was made, a statute was passed authorizing the owner to bring an action against the purchaser, whether in or out of possession. In commenting on this statute it is said in Robb v. Bowen, 9 Penn. St., 71: “In Waln v. Shearman it was decided that the limitation commenced at the time possession was taken by the purchaser, because the owner had for the first time an opportunity of legally asserting his title. The reason of the law is the life of the law, and the spirit of that decision is, that it wmld be unjust to make the statute run when the owner had no opportunity to- assert his title, but perfectly fair to launch it from the time he had such opportunity. ” It is urged that in Eldridge v. Kuehl, 27 Iowa, 160, we determined our statute was borrowed from Pennsylvania, and, therefore, the construction of such statute by the courts of that State will also be adopted by us. This may be true with the limitation that all the statutes of the State from which ours is borrowed on the given subject are identical. Jamison v. Burton, at present term. But there never was any statute in that State, or in Wisconsin, like ours, authorizing any person claiming an interest in real property, whether in or out of possession, to bring an action to quiet the title against any person claiming title thereto, though not in possession. Eev., § 8601; Code, § 3273. It is at least fairly inferable, from what is said in Robb v. Bowen, supra, if such a statute had been in force in Pennsylvania, that the decisions in that State would have been in accord with our views as herein expressed. As the holder of the tax title has the opportunity, under our statute, to bring an action at the time the deed is recorded, we, in the language of the Supreme Court of Pennsylvania, behove it to be perfectly fair to launch the statute from such time. In the absence of any authority, and construing the statute for ourselves, we have no hesitation in holding that such is the only fair construction that can be adopted. The light to bring an action to quiet title is equally open both to the owner and purchaser. The limitation, or right to bring an action, applies to each equally. There is no reason why one must bring an action within the five years, and not the other. The language of the statute is clear and express, that no action shall lie unless brought within the given period. Within that period the defendant was in possession, and, this action not being brought until the five years had elapsed, the bar of the statute is complete.

IY. It is insisted the tax deed draws with it the constructive possession of the premises, when the same consists of unoccupied lands, and the putting the deed on record amounts to such an assertion of title as to compel the owner to bring an»action within five years thereafter, in order to prevent the bar of the statute from being complete as to him, but the purchaser, because he is deemed to be in possession, is not required to do so. The statute itself warrants no such construction, and it is founded on the construction of statutes different from ours by the courts of other States, and is based on the thought that the owner, in permitting his land to be sold for taxes, lias abandoned all claim or title thereto. In view of the known and acknowledged history of our State, the. position taken is not true, for it is well known and understood that many persons, from sheer necessity, permit their lands to be sold for taxes, and others through carelessness. It may be said, with entire safety, in no case does the owner thereby intend to abandon his title. There is, therefore, neither sense nor reason in so holding. On the contrary, we hold, in accord with such well known history, that the owner is continually claiming title, and that he is within the spirit and letter of Rev., § 3601: Code. § 3213. At the same time, 'it is true, the purchaser is also claiming title from the time his deed is recorded. Both are thus placed on an equality, and this, it seems to us, is the only just, and equitable rule, within the letter and spirit of the statutes on this subject. No hardship is thus imposed on the purchaser, as all the titles in oúr State are derived from the United States, and are of record in the several counties. The purchaser, therefore, can readily ascertain against whom to bring the action.

We have thus indicated our views, as the same have been presented by counsel, without particular reference to the errors assigned, deeming such to be the better mode of disposing of the questions involved.

Affirmed.