Ferguson v. Heath

Dillon, J. l. tax sale: m gross. The tax deed upon which the defendant relied, shows on its face that the two tracts of land mentioned in the statement were sold at the adjourned tax sale in December, 1861, for the delinquent taxes of 1860, in a lump to the defendant, for the gross sum of five dollars and seventy cents. This makes the tax deed void upon its face. So held in Boardman v. Bourne (20 Iowa, 134), and in Byam v. Cook (at present term). This deed could not, therefore, be the foundation of a legal recovery by the defendant. . Although the tax was assessed and levied under the previous act of 1858, yet the land was sold under the law [440] of 1860, in force from and after the 1th day of July, 1860. Rev., chap. 15. This latter law was the one that governed, with respect to the mode of sale, and this makes the cases of Boardman v. Bourne and Byam v. Cook applicable to the tax sale and deed to the defendant. See Corbin v. Hills, ante. We need not, therefore, consider whether a sale of two distinct parcels in a lump would not, if the fact appeared on the face of the deed, invalidate it as well under the act of 1858 as under that of 1860. The recovery of the defendant by virtue of a deed void upon its face, was erroneous, and for this error the judgment must be reversed, provided the appellant has saved the point upon the record. practice-exceptions, The appellee claims that the record shows that the plaintiff made no such question in the District Court, and therefore be cannot be allowed to make it in tbis court. The condition of the record is fully set. forth in the statement. It is true that the plaintiff did not object to the introduction of the tax deed on the ground that it was void upon its face, because it showed a sale of the two parcels en masse. This was not one of three objections which he made to the reception of that deed as evidence. We will concede that those objections were properly overruled, and that so far as they were concerned the deed was properly admissible. Suppose the record showed that the plaintiff did not make any objection whatever to the introduction of the tax deed; would he therefore lose his right to insist that it was void upon its face. And would he, if the court should hold it valid, and he excepted, lose his right to complain of such holding? Clearly not. The plaintiff’s evidence showed affirmatively, that he was the owner of the land, unless the defendant should prove title in himself. The record [441] also shows affirmatively that the defendant introduced no evidence of title in himself, except this tax deed, and “ that upon this evidence the court found for the defendant, to which findi/ng the plaintiff then and there excepted This saves the point, especially when it is shown that the plaintiff, in his motion for a new trial, expressly claimed that the court erred in rendering, upon this evidence, judgment against him and in favor of the defendant. In other words, the record shows affirmatively, that the court erred in holding that the tax deed was valid, and basing a recovery upon it; and it further shows that to this holding the appellant excepted, and afterward (if this was then necessary) he made this erroneous ruling a ground of his motion for a new trial. Therefore we are of opinion that there is error upon the record, clearly shown and duly excepted to. The- judgment below is reversed, and the cause remanded for a new trial. Reversed.