Penn v. Clemans

Cole, J. i. taxes: ^aws.® The important facts in this case occurred in the following chronological order: the assessment and levy of the taxes for the years 1857 and 1858; the platting and recording of the homestead in November, 1859; the decree sale of all the lands, except the homestead in December, 1859, and the sale for taxes (of 1857,1858) in February, 1863. At the dates of the levy of the taxes, the platting of the homestead and the decree sale, it was expressly provided by statute: that “ the homestead is liable to be sold for no taxes save that which is due on itself exclusively.” Code of 1851, § 501; Laws of Seventh Gen. Assembly (1858), ch. 152, § 54, p. 322; Revision of 1860, § 766. “But the homestead is liable for taxes accruing exclusively thereon, and the whole or a sufficient portion thereof may be sold to pay the same.” Code of 1851, § 1248; Revision of 1850, § 2280. • It-was also provided by the Code of 1851, Laws of 1858, and Revision, supra, that when lands were sold for taxes, the person who would pay the amount due for the smallest portion, was to be considered the purchaser; and that when such portion was half or more, it should be [377] taken from the east side, except that town or city lots should be divided lengthwise; and that when the portion was less than half it should be taken from the southeast corner in a square form, as nearly as convenient. It was then provided that the preceding provisions are subject to the following qualifications; the homestead is liable to be sold for no tax save that which is due on itself exclusively, and the above directions concerning the division'of a tract of land, shall be modified so as to meet this requirement, and to that end the quantity of land bid may be obtained by drawing the division line in any direction or form so as to avoid the homestead; and when the homestead constitutes part of the tract sold and is not yet ascertained, the court may, at the suggestion of either party, cause a proceeding to be had similar to that required in relation to mechanic’s liens, for the ascertainment of the homestead, and in all cases of such sales it may take the requisite order and proceedings to ascertain the land sold, or to set it apart from the homestead. While the language of this portion of the statute, and especially the last half of what is styled “ qualifications,” is very greatly wanting in clearness and perspicuity, it is nevertheless reasonably certain, from the whole section taken together, that it was the legislative intent to subject the homestead for no tax except upon itself, and to exempt it from sale, even for taxes thereon (as from execution, when liable to sale thereunder), “ except to supply the deficiency remaining after exhausting the other property ” of the debtor, continguous thereto, and which is liable in common with it, to sale for taxes. This provision of the statute was, however, repealed by the Laws of the Ninth General Assembly (1862), ch. 178, § 9, p. 225, and there was enacted in place thereof, as follows : “In all cases where the homestead is listed separately as a homestead, it shall be liable only for the taxes thereon.’’ [378] This provision of the statute was in force at the time of the tax sale, and still continues in force. But the taxes being assessed, levied and becoming delinquent under the former law, the right of the parties, as to these several steps, are to be adjusted under that law. Adams v. Beads et ux., ante. So far as the sale is concerned, it will, of course, be governed by the law in force at the time it took place, and which authorized it. The homestead in this case was platted and recorded, and claimed and occupied as such, at the time of the sale, and had been for more than three years previous thereto. When the property was assessed and the tax levied, the law did not require that the homestead, should be listed or assessed separately, or as a homestead, in order to exempt it from any tax except that due exclusively thereon; but it was only liable for that tax in any event or however listed. A subsequent change of that law could not affect the rights of the parties which became vested or fixed by it. 2, He»™“taxes." Since the homestead was not liable, under the law, for any taxes except those due upon itself exclusively, it tainly is not competent for the officer making the tax sale, or the person purchasing thereat, to extend the liability of the homestead by a sale and purchase of it, in connection with other lands. The exemption of the statute would be of little avail if third persons could thus defeat its plain letter and intent, by selling the homestead in connection with other property, and compelling the owner to pay the taxes upon such other property, for which his homestead is not liable, in order to redeem it or save it from total loss. 3 tax sale •redemption. owa, And again, it is settled beyond controversy, that a party having no interest in land, has no right to redeem it from a sale for taxes Byington v. Boohwalter, 7 I512. And if it turns out that the person who [379] pays Ms money for the purpose of redemption, had no interest whatever, to be protected by the redemption, his act of redemption can neither vest title in him, or divest that of the tax purchaser. Blackwell on Tax Titles, 1st ed., 496. Nor can such act of redemption inure to the benefit of the owner, who had the right to redeem. Byington v. Bookwalter, supra; Masterson v. Beasley, 3 Ohio, 301. If the plaintiffs in this case should, therefore, pay the amount requisite to redeem the whole of the two hundred and forty acres within which his homestead is situated, since he has no interest in any except his homestead, such act would neither invest him with any title to the land outside of his homestead, nor divest the tax purchaser, Leroy House, of his right to a tax deed thereto, and the title derived thereby. There is, then, neither reason nor justice in requiring him to do an act which cannot be of advantage to himself or the owner, nor, if not done, of detriment to any other person. Neither is there any mutuality; for, if the tax purchaser or clerk may require the plaintiff to pay his money for redemption, the plaintiff cannot compel either to accept the redemption money, nor can he demand or derive any equivalent for his money when paid. _sale3 in gross. And, finally, it is a well settled rule, and one which has been frequently recognized by this court, that, even in execution sales (where the rule would not be as Sj;rictly applied as in tax sales), a sale of several distinct subdivisions or parcels of land in gross, is irregular and will not be upheld. Boyd v. Bilis, 11 Iowa, 97; Singleton v. Scott, 11 Id., 589 ; Grapengether v. Fejervary, 9 Id., 163 ; Bradford v. Limpus, 13 Id., 424; Lay v. Gibbons et al., 14 Id., 377. This rule has been recognized and enforced in very many cases of tax sales. Ainsworth v. Dean, 1 Foster (N. H.), 400; Stead’s Ex’rs v. Course, 2 Dallas, 403; O’Brien et al. v. Coulter et al., 2 Blackf., 421; Register v. Bryan, 4 Hawke, 17; Hodge v. Wilson, [380] 12 Smedes & Marsh., 498 ; Boisguard v. Johnson, 23 Miss., 122; Corporation of Washington v. Pratt, 8 Wheat., 686; Blackwell on Tax Titles (1st ed), 334, et seg. In this case there was a palpable violation of this well settled rule. The officer sold not only that which was assessed in two distinct assessments, but which really-embraced six distinct governmental subdivisions of this identical land. The purchaser stands charged, most undeniably, with knowledge of this wrongful act, and to permit either the officer or purchaser to take advantage of this wrong on their part, to defeat the right of redemption, would be to 'override that well settled rule of law and common justice, that no man shall take advantage of his own wrong. \ The redemption clauses of revenue statutes are to be construed with liberality in favor of those whose estates will be otherwise divested, and especially should this liberal construction obtain under a statute like ours, which gives ample indemnity to the purchaser, with the most liberal interest and penalties against the owner. Dubois v. Hepburn, 10 Peters, 1; Burton v. Hintrager, 18 Iowa, 348. ^áemptíon; paySmt. Since the homestead was assessed, and the tax levied upon it at the same rate per acre as the remaining portions tw0 hundred and forty acres, it follows that the purchaser paid therefor pro rata as to quantity. And a purchaser at a tax sale, or the clerk in his stead, only has the right to demand or receive the money paid at the tax sale, with the penalties and interest thereon; and this, too, regardless of the fact as to whether the property was assessed and taxed at more or less than its actual or relative value. Affirmed.