I find myself unable to agree with the majority and respectfully dissent. *Page 1137
This is not an action to quiet title, nor is it one to determine who has title to certain property. It is an action in equity to enjoin the county treasurer of Polk county from listing, publishing and selling certain pieces of property to which Polk county holds tax deeds.
The majority holds that because the tax deeds were not introduced in evidence there is no record before this court that Polk county held tax deeds properly executed and recorded. This in face of the fact that there were introduced in evidence, Tax Sales Books Nos. 52, 53 and 54, books kept by the county treasurer and auditor, which show the name of the persons in whom the various parcels of property are taxed, the amount and kind of taxes, the amount for which the property was sold, the person to whom the property was sold, redemption if any, and to whom a tax deed was issued and the date. Thus we find that this record shows the various pieces of property to which the county held tax title. It should also be kept in mind that there is no evidence of any irregularities in the tax deeds held by the county and the intervenor Max Ruffcorn does not allege in his petition or offer any proof showing any irregularities or failure to strictly comply with all laws relating to the conducting of the tax sales or the issuance of tax deeds pursuant to said sales.
The majority concedes that "a tax deed, when valid and effective, displaces and extinguishes the liens of all special assessments against the property conveyed, existing at the time of the general tax sale".
The majority opinion, as I read it, holds in reality that there is a presumption that the tax deed is not properly executed and recorded, and this in face of the direct enactment of the legislature that tax deeds shall be presumptive evidence of certain things and conclusive evidence of other things, sections 7287 and 7288, 1935 Code.
This record shows that it will cost Polk county more than $12,000 to list and publish the properties to which the county holds tax deeds — tax deeds that are not attacked in this case. Tax deeds that can only be attacked by those that come within the provisions of Code section 7290, 1935 Code, and this intervenor makes no such claim.
In my judgment under this decision every county treasurer in Iowa must list, publish and sell every piece of property to *Page 1138 which the county holds tax deed, and against which there are outstanding special assessments. It is hard to estimate the amount of money which will be wasted; it will run into hundreds of thousands of dollars. For Polk county alone it amounts to over $12,000.
The lower court was right in enjoining the county treasurer of Polk county, for the treasurer had a right to presume that the tax deeds to the county were valid, and to list, publish and sell would be not only a useless thing to do, but also an expensive one; one that should bother the conscience of a court of equity so that it would use its power to prevent it.
JUSTICE RICHARDS authorizes me to state that he joins in this dissent.