Bleidorn v. Abel

Stockton, J. — This appeal properly brings up for our consideration the matters in dispute between the complainant, Bleidorn, and the Abels, and not those in dispute between complainant and the defendants, Ileyne and ' Schroeder. Ileyne made no appearance or defence to the action, and complainant was entitled to a judgment by default against him. Schroeder entered his appearance by attorney, and, so far as he was concerned, confessed the justice of complainant’s claim. IIow far the complainant may have been entitled to represent the mortgagees, Bell and Hull, in their claims upon the land ; and how far the Abels were entitled to require that the claims of complainant, as the assignee of the mortgagees, Bell and Hull, so far as they were hostile to their own, should be made out by sufficient testimony, will be noticed in another part of this opinion. 1. The questions arising upon'the demurrer of complainant to the answer of the Abels, are the same as those involved in the judgment of the court upon the final hearing. We shall consider these questions but once, as they all involve the sufficiency of the title to the land set up by the Abels, under the purchase at the sale for taxes, and the several conveyances made by virtue thereof. This sale was made by the treasurer of Johnson county, on the 19th of April, 1852, and the first deed relied on by defendants, is that made under it, for the taxes of 1818. In support of this deed, the defendants introduced a transcript of the judgment of the district court of Johnson county, at the March term, 1852, in favor of the state of Iowa, for the sale, as the law directs, of the lands returned delinquent, for the taxes of the years 1817 and 1818, including the lands in controversy. No return is shown, how'ever, of any sale of the lands by the treasurer under this judgment; nor does the deed show that it was made under a sale held by virtue of the judgment, or of any judicial proceedings had against the land. All that is shown is a certificate by the treasurer, to the effect that on the 19th of April, 1852, the defendant, Abel, purchased [16] the lands in dispute, for $22 94, the amount of delinquent taxes for the year 1848; that in two years, if not redeemed, he would be entitled to a deed; and that on the 26th of July, 1854, the lands not being redeemed, they were conveyed by the treasurer according to the certificate. The deed is not assisted by the judgment, because no connection between the two is shown. It stands by itself. At the time of the sale, the act of February 27, 1847, (Session Acts, 136,) had been repealed by the Code, section 28. It was repealed without any saving of the remedies existing at the time, for the collection of taxes levied and delinquent; and there was no authority under the Code, for selling, in 1852, lands delinquent for the taxes 1848. We are, therefore, of the opinion that the treasurer’s deed,' under the sale made for the taxes of 1848, conveyed no title to defendants, and they were not entitled to give the same in evidence. 2. The defendants rely, also, on a treasurer’s deed to them for the lands, under a sale thereof for the taxes of 1849, and a similar deed, under a sale for the taxes of 1850. The sale was made in each case, on the 19th of April, 1852 ; not by virtue of any judgment against the lands for taxes, under the act of February 27, 1847. No such judgment, at any rate, is produced. But, whether made under the act of 1847, or under the Code, the objections to the deeds are equally valid. Under the act of 1847, the sale could only take place in pursuance of a judgment in the district court, against the land, for taxes due and unpaid. Such .judgment could only be rendered upon a return of the treasurer, showing that the taxes had remained due and unpaid for the term of two years from the first day of January, next after the delinquent list had been filed in his office. Section 44, 142, acts 1847. This list, the treasurer was required to make out and file, as soon as possible after the first day of January in each year. Section 41, 141. In a regular course of proceedings, there could rightfully have been no judgment against, or sale of, the lands, in 1852, for the unpaid taxes of 1849 and 1850. [17] Such, has been tbe decision of this court upon a tax title derived under the act of 1811, tbe provisions of which are, in all respects, similar to tbe act of 1817, with tbe exception that, under tbe latter, tbe owner was allowed two years, from tbe day of sale, to redeem tbe land; and if not redeemed within that time, tbe purchaser was entitled to a deed. Scott v. Babcock, 3 G. Greene, 133; Williams v. Gleason, 5 Iowa, 284 These remarks are made upon tbe assumption that the act of 1817, was in force at the time of tbe sale. "We are of opinion, however, that it was repealed by tbe Code, without any saving clause, and without any provision remaining to authorize a judgment against, or sale of, tbe lands, for tbe unpaid taxes of any year prior to its repeal. Nor does tbe sale derive any support from tbe provisions of tbe Code. Under section 196, tbe treasurer was authorized to sell, in each year, only the lands upon which tbe taxes levied tbe preceding year remained unpaid. No authority to sell for tbe unpaid taxes of any year prior to 1851, was vested in tbe treasurer, until tbe passage of tbe act of January 22, 1853. Session Acts, 129. Tbe defendants, Abels, in order further to maintain their right to tbe lands, gave in evidence a deed from the treasurer, under a sale of tbe lands for tbe taxes of 1851. This deed, tbe statute provides, conveys [tbe title of tbe land to tbe purchaser, and is presumptive evidence of the regularity of all prior proceedings. Code, section 503. Tbe objections taken to this deed by complainant, that tbe sale under which it was made, was for tbe taxes of 1819 and 1850, as well as tbe tax of 1851, and that three several tracts of land were sold in gross, instead of being sold in parcels, as required by law, we do not at present consider. In addition to tbe deed, tbe defendants have given in evidence, and rely upon, a decree of the district court of Johnson county, rendered at tbe November term, 1853, in a suit brought by them upon this deed, against John F. Heyne, their co-defendant, to foreclose tbe right of said Heyne to this land. By this decree, it was adjudged that [18] “ the equity of redemption to the land, be forever barred and foreclosed against the said Heyne and all persons claiming under him.” Without undertaking to decide what effect must be given to the decree and proceedings in this suit, nor whether the objections taken by the complainant to the deed, are proper for our consideration, after the rendition of this decree, we think the objections urged to the conclusive effect of the decree upon the rights of complainant, are legitimate and valid. The proceedings in the foreclosure suit, were against Heyne alone. They bind, therefore, only the interest of Heyne, and not the interest of any person claiming a title to, or lien upon, the lands, previous to the tax sale, not a party to the suit. Now, the interest of complainant, if he shows himself the holder, in good faith, of the promissory notes secured by the mortgages, dates as far back as 1846. The proceedings in the foreclosure suit, were commenced in 1835. The complainant not having been made a party to that suit, is not bound by the decree, and his claim to the premises, under the mortgages, is in no manner affected by it. Where the prior proceedings have been regular, the purchaser at the tax sale, acquires the lien of the tax upon the land. Code, section 508. This lien is in the nature of a mortgage, and the holder of the deed may institute a suit of foreclosure upon it, to bar the equity of redemption to the land. As in other cases of foreclosure of a mortgage, all incumbrances, whether prior or subsequent, not made parties, are not bound by the decree. Veach v. Schaup et al., 3 Iowa, 194; Story Eq. Pl., section 193. The questions relating to the proof of the assignment of the notes, and to the sufficiency of the certificates of acknowledgment of the power of attorney to Wetmore, and the deed to Schrceder, we have not deemed it necessary to consider. The ruling of the court upon these questions, was in favor of the complainant. Upon this ruling, he was entitled to a judgment against Heyne for the amount of the notes, and to a decree of foreclosure against the interest of Heyne and Schrosder, in the mortgaged premises. [19] As the final decree was against the complainant, dismissing his bill, we conclude that the district court was of opinion that the defendants, the Abels, by virtue of their tax deeds, acquired a title to the land, superior to that of complainant, or those under whom he claimed. This judgment of the court dismissing the bill, based as it was on the adjudged paramount nature of the title of the Abels, was erroneous, and the same will he reversed, and the cause remanded for trial anew in the district court. As the conclusive effect of the decree of foreclosure, obtained by the Abels on their tax deed, depends upon the question of complainant’s right to the promissory notes, as the assignee of Bell and Hull, and upon the fact whether or not he was a prior incumbrancer upon the land, the defendants, the Abels, should have an opportunity of making every objection to the right of complainant to recover against Heyne, which, considering the position they occupy, and the relation they sustain to the other defendants, they are in justice entitled to make. As complainant has made them parties to the suit, they are entitled to demand that plaintiff makes out his right to a decree against Heyne, by sufficient testimony. Upon the admissibility of the testimony offered, and upon the’ question of its sufficiency to authorize a recovery in the name of complainant against Heyne, we give no opinion. Decree reversed.