Swan v. Harvey

Ladd, C. J. —

1 The record shows that the Leeds Improvement & Land Company was entitled to notice of the expiration of the period of redemption before the tax deed was-issued to the defendant, but that none was served. The plaintiff’s judgment was rendered after the tax sale, but before the execution of the tax deed, and the sole question presented on this appeal is whether the judgment lien-holder has the right to maintain an action to redeem. If such a lienholder may redeem before, we do not see why he may not after, the issuance of a deed under such circumstances. In Slyfield v. Barnum, 71 Iowa, 245, the court' said: “Unless the notice has been served on the person in whose name the land is taxed, he is not authorized to execute a deed. The deeds in question, then were executed without authority. They are not absolutely void, it is true, for they operate to transfer the title to the lands to the grantees. But they did not have-the effect to terminate the- right of redemption, and the-title conveyed by them was subject to be defeated by the-exercise of that right, and as long as a right to redeem the land exists, there is no completed sale. The settled rule is that until there is a completed sale the period of limitation presented by the statute does not begin to run. Wilson v. Russell 73 Iowa, 395; Hillyer v. Farneman, 65 Iowa, 227; Cornoy v. Wetmore, 92 Iowa, 100; Shelley v. Smith, 97 Iowa, 259; Railway Company v. Kelley, 105 Iowa, 106; Bradley v. Brown, 75 Iowa, 180.

2 Appellant insists, however, that before an action to-redeem can be maintained title must be established as required by section 1445 of the Code. The portion of that section in question may be set out: “In all actions; involving the title to real estate claimed and held, under a deed executed substantially as aforesaid by the treasurer, the person claiming title adverse to the title-conveyed thereby shall be required to prove, in order to defeat the title, either that the real property was not subject to taxation for the year or years named in the deed, that the taxes had been paid before the sale, that the property had been redeemed from the sale and that such redemption was had or made for the use and benefit of persons having the right of redemption, or that there had been an entire omission to list or assess the property, or to levy the taxes, or to give notice of the sale, or to sell the property; but no person shall be permitted to question the title acquired by a treasurer’s deed without first showing that he, or the person under whom he claims 'title, had title to the property at the time of sale, or that the title was obtained from the United States, or this state ?,fter the sale.’-’ It will be observed that the matters enumerated one of which must be negatived are precisely those of which the tax deed is made presumptive evidence by the preceding section. But the termination of the right to redeem by the service of a proper notice is riot one of these, and is mentioned in neither section. Suppose all the facts are as represented by the deed, and yet the right to redeem has never been cut off, would the owner of the fee be deprived of any remedy? Such would be the unavoidable result were the section quoted held applicable to uncompleted sales. Under it the repayment of taxes, interest, and penalties may be exacted as an incident or as a condition of setting aside the tax deed, but the object to be attained is not redemption, but the defeat of a deed “executed substantially as aforesaid by the treasurer”; that is, “after the expiration of the 90 days from the date of the completed service,” in accordance with the provisions of section 1441. Unless the right of redemption is terminated the issuance of the treasurer’s deed is no obstacle to the exercise of that right. It merely changes the remedy. Before its execution redemption can be made by payment to the auditor. “Any person entitled to redeem lands sold for taxes after the delivery of the deed shall do so by an equitable action in a court of record.” Section 1440, Code. Manifestly any one who could have protected an interest-in or lien on land before the tax deed issued may avail himself of this remedy afterwards unless the right to redeem has been terminated in the manner pointed out by statute.. There are cases like Bowers v. Hallock, 71 Iowa, 218, and possibly others, in which the above section is quoted as-being applicable to such a case but it will be found upon examination that in all the right to redeem was based on title, and that, regardless of the above statute, title must-have been proven in order to.establish any interest in the land. It could then have had no material bearing; otherwise the cases relied on by appellant are not in point.

3 II. That a judgment creditor may redeem from- the-tax sale of land on which his judgment is a lien is not open to serious question. Text writers lay this down as the rule-in their works on taxation,' and it has been recognized in several decisions of this court. See Cooley, Taxation, 538; Black, Tax Titles, section 365; Blackwell, Tax Titles, 482. Thus in Adams v. Beale, 19 Iowa, 61, in holding that the homestead interest of the wife of the head of a family was real property, under chapter 173-of the Acts of the Ninth General Assembly, the court, through Cole, J., said: “Where land has been mortgaged to secure a debt and judgment creditors have liens upon it, and the -land is in possession of a stranger to the title, whose possession is ripening into a right, each is an owner according to the extent of his interest- and claim, and each has a fight to protect his interest by ■ a redemption from a tax sale. Blackwell Tax Titles, 496 ; Id. (2d Ed.) 423. Any right which, in law or equity amounts to an ownership, in the land, any right of entry upon it, to its possession or enjoyment, or any part of it which may be deemed as an estate, makes a person an-owner, as far as it is necessary to give him the right to redeem.” See, also, Byington v. Buckwalter, 7 Iowa, 512; Byington v. Rider, 9 Iowa, 566; Foster v. Bowman, 55 Iowa, 237; Burton v. Hintrager, 18 Iowa, 348; Cummings v. Wilson, 59 Iowa 14; White v. Smith, 68 Iowa, 313.

The conclusion reached by the district court was correct, and it is aetirmed.