l. tax sake : authorizedby1 law‘ I. The plaintiff introduced in evidence the patent from the United States, together with conveyances showing title in himself, and then rested his ease. The defendant then offered in evidence a treasurer’s tax deed, dated December 6,1864, from John Collins, treasurer of Scott county, to, Austin Corbin, the defendant’s grantor, purporting to convey the land in controversy, which deed was filed for record the same day and duly recorded. This deed was in the precise form prescribed by Rev. § 783, but it stated that the sale was begun and publicly held on the first Monday of December, A. D. 1861, instead of the first Monday in October, as provided by section 763; it also showed the sale of the whole eighty acres, now in controversy, together in the lump.
The plaintiff objected to the introduction of this deed, because, first, the said deed is void upon its face, in that it appears by the deed that the sale wns made at a time not authorized by law; second, the deed shows upon its face the sale in gross of eighty acres of land; third, the deed is not admissible in evidence until proof has been made of the several steps required by the law to be taken before the sale, and necessary to the exercise of the taxing
The first ground of objection is, that the deed shows the sale was made at a time not authorized by law. This objection is not well founded. It is true that Revision, section 763 provides that on the first Monday of October in the year 1860, and in each year thereafter, the county treasurer is required to offer at public sale, etc., all lands, etc., upon which the taxes are delinquent. But section 776 provides that if, from neglect of officers to make returns, or from any other good cause, real property cannot be duly advertised and offered for sale on the first Monday of October, it shall be the duty of the treasurer to make the sale on the first Monday of the next succeeding month in which it can be made, allowing time for the publication, etc. The sale was made, therefore, at a time authorized bylaw. This objection is not that the facts authorizing the sale at a time other than the first Monday in October were not shown by recital or proof, but that it was at a time not authorized by law. 'As we have already seen, the statute did authorize the sale at the time it was made.
2. —of tracts greater than forty acres. As to the second ground of objection, that the deed shows upon its face the sale in gross of eighty acres of land, we need only remark that such a sale _ has been held good, where the land is listed and assessed to an owner. Corbin v. De Wolf, 25 Iowa, 124. Such a sale being rightful and proper in cer tain cases, and nothing appearing to show it improper in this case, this objection was properly overruled.
The third objection, as above stated, is based upon this reasoning, to wit: so much of section 784:, as declares the treasurer’s deed conclusive evidence that all the prerequisites of the law to make a good and valid sale, and
One member of the court (Wright, J.) was necessarily absent during the argument of this case; and as the decision of the constitutional question as made is not absolutely necessary in order to the disposition of the case, we forbear any expression of opinion thereon. In' so doing, we follow the rule in such cases, as laid down in McClure v. Owen (21 Iowa, 133), and the authorities there cited.
The statute itself makes the deed grima facie evidence of certain facts; and since the deed was competent to prove these, it was not error to admit it. See Allen v. Armstrong, 16 Iowa, 508.
3_miscon-chaser:*evidence. II. The plaintiff introduced a witness and offered to prove by him that, at the sale recited in' the treasurer’s dee<3> the said Austin Corbin, the purchaser at said sale, by his conduct prevented competition with him by the bidders present in reference to many pieces of land bid for by him, etc., etc. To this evidence the defendant objected because it was immaterial, and excluded by limitation and by the conclusiveness of the tax deed; which objections were sustained and the evidence excluded. This ruling is now assigned as error.
There was no error in excluding the evidence on the ground of immateriality. It was wholly immaterial as to what arrangements the purchaser of the tract of land
e.— error in ania taxes. III. The plaintiff then offered the return of the assessor for the township, showing that while the land was assessed at $560 it was taxed at the rate of $616; and also offered the collector’s book, showing that part of the tax for which the land was sold was a “ railroad tax,” to levy which there was no authority of law, the bonds and coupons being void, and that a part was for a “ district tax,” not levied according to law, and that the tax was computed on the value of $616, instead of its assessed value, $560 ; and also offered in evidence the “minute book” from the county judge’s office to show the same facts. To the introduction of each of which the defendant objected for the same reasons as above stated, and the court sustained the objections and excluded the evidence. To which ruling the defendant excepted, and now assigns the same ás error.
The alleged error in assessment was immaterial, since it could not affect the title conveyed by the treasurer’s deed. It is expressly provided by section 753 that no irregularity, error or omission in the assessment shall affect in any manner the legality of the taxes levied thereon, or the right or title of any real property sold for the non-payment of taxes, etc. So also of the offered proof as to the illegal and improper taxes. Section 762 provides for the correction of illegal and erroneous taxes,
6. btaxv*, » wiSntt commenees to mu. IT. The only remaining question arises upon the statute of limitations embraced in the revenue law. “ Section 79°- action for the recoveiy of real propei’ty> sold f°r the non-payment of taxes, shall ]q6) unless the same be brought within five years after the date of the sale thereof for taxes as aforesaid (anything in the statute of limitations to the contrary notwithstanding); provided, that when the owner or owners of such real property sold as aforesaid shall, at the time of such sale, be minor or minors, or insane, five years after such disability is removed shall be allowed such person or persons, their heirs or legal representatives, to bring their suit or action for recovery of the real property so sold.” This section is substantially a copy of the Pennsylvania statute of April, 1804, which is copied in the opinion of the court in the case of Waln v. Shearman, 8 Serg. & Rawle, 357.
The District Court held, in this case, that the statute began to run from the date the treasurer struck off the„ land to the bidder therefor, and that more than five years having elapsed since said date, the plaintiff could not maintain the action.
The word “ sale ” is defined by Bouvier in his law dictionary to be “ an agreement by which one of the contracting parties, called the seller, gives a thing and passes the title to it, in exchange for a certain price in current money, to the other party, who is called the buyer or purchaser; who, on his part, agrees to pay such price.” Any thing short of passing the title is but an agreement to sell; but, while this is the strict legal or technical meaning of the word “ sale,” it is evident that the word is used a great number of times in our revenue act, in a
In order to justify giving to that word, then, a different meaning in this section from what it manifestly has in the other sections, we must have some strong and overruling necessity, or a plain and manifest intent, to use it in such different sense.
All statutes of limitations must proceed on the idea that the party has had opportunity to try his right in the courts. Cooley on Const. Lim. 366.
The striking off of the real estate to the highest bidder, and the giving to him a certificate of purchase thereof, does not invest him with any title to or interest in such real estate, but simply a lien upon it for the taxes, interest, costs, penalties, etc. Williams v. Heath, 22 Iowa, 519. No ordinary action, for the recovery of such real property, could therefore be brought against the holder of such certificate. Eev. § 3569. Nor, indeed, could the owner know who was the holder and owner of such certificate at any time after its delivery, for they are assignable, and such assignment vests the assignee with all the rights of the original purchaser. §778. This condition of affairs must continue for three years; for, until then, the purchaser has no right to any thing else evidencing his interest, except the certificate, and it may be assigned to a new owner each successive day or oftener. Not only so, but the purchaser or holder of the certificate need not then apply for or receive his deed ; it is the duty of the officer (clerk) to deliver the deed “ upon the return of the certificate.” § 781. The purchaser or holder of the certificate may therefore keep it in his own
But, it is argued, that our statute does give another remedy for the recovery of real property than that provided in section 3569. ¥e are referred, first, to another section in the same chapter (144), and which is entitled
Our statute of limitations, as has been remarked, was borrowed from, or is substantially a copy of, the Penn, sylvania statute. Where a statute is thus borrowed and adopted, the construction of it by the courts of the State from which it was borrowed will also be adopted. Campbell v. Quinlan, 3 Scam. 288; Adams v. Field, 21 Vt. 265; Rigg v. Walton, 13 Ill. 16; The State v. Rowley, 12 Conn. 101. In Waln v. Shearman (8 Serg. & Rawle, 357, supra), the Supreme Court of Pennsylvania held that the statute only commenced to run from the time possession was tahen under the tax deed; and this, because no action could be brought for the recovery of real
The District Court held that the statute of. limitations commenced to run from the day of sale or striking ofi^ by the treasurer; and thus holding, refused an instruction asked by the defendant that the statute did not commence to run till the deed was duly delivered, etc., and instructed them that the tax deed was valid and binding, and conveyed the title to the grantee therein. As we have seen, this was error. The judgment of the District Court is
Eeversed.