Gray v. Coan

Cole, J. The averments of the petition are, that the plaintiff owns in fee simple the real estate (lots in Clinton) embraced in the tax deed to defendant, and that she so owned the same at the several times of the sales for taxes as set forth; that said plaintiff was a married woman prior to the seventh day of October, 1861, and has been ever since; that said real estate was sold for taxes in 1861, 1863 and 1864; that after said sales the plaintiff redeemed said real estate from all taxes then due thereon by paying to the clerk the proper amount; that the plaintiff had the right to so redeem said lots, and that all taxes on said real estate have been duly paid by plaintiff to the present time. It is further averred that in the month of May, 1866, in some way or manner unknown to plaintiff, the defendant obtained tax deeds for said lots and had the same recorded; that said deeds wei’e made after said lots were redeemed ; that said deeds were null and void and are a cloxxd upon plaintiff’s title and a serious injury to her xúghts; that at the time of the sales for taxes, the treasurer did not offer the smallest portion for the taxes due, but sold the entire lots ; that plaintiff had no knowledge of the claim of said defendant, or that any taxes were unpaid or the lots unx*edeemed, until the tax deeds were recorded. The petition concludes with a prayer to have the tax deeds declared null and void, and canceled; that defendant be enjoined from asserting any title under the same, and for all other px’oper relief, etc. The defendant demxxrred, because: First, the court had no jurisdiction of the subject of the action, in that plaintiff’s remedy was not in equity, but at law, or by suit to recover possession, or by suit to compel defendant [353] to bring an action to try title, etc. Second, the petition does not state facts sufficient to constitute a cause of action. Third, the petition states facts which avoid the cause of action. i. equity: remidyatlaw: practice. That the plaintiff has brought an action in equity, when she had an adequate remedy at law, or by a special proceeding under a statute, is not a good cause of demurrer, under our system of prac^iee, has been several times determined by this qourt. Conyngham v. Smith, 16 Iowa, 471; Savery v. Browning, 18 Id. 246; McDole v. Purdy, at present term. The appropriate remedy to a defendant for such an error by a plaintiff, is to have the action changed into the proper proceeding. Holmes v. Clark, 10 Iowa, 423. a. — proceedingeqiuty.per 1 But the petition in this case, which seeks to have certain deeds canceled and held null and void, for the reason that certain facts exist making them null and void, which facts do not appear upon the deeds themselves, is very properly brought on1 the equity side of the court. Van Doren v. New York, 9 Paige Ch. 388; Black on Tax Titles (1st ed.) 571, 572 and 573, and authorities cited. s_cause of action. A fair construction of the language of the petition shows sufficient to constitute a cause of action. It shows that the plaintiff was the owner of the real estate at the times of the several sales, and still continued to be such owner; that she had redeemed from all the sales and had paid all taxes due, and that notwithstanding these facts, defendant had in some manner obtained a tax deed. If it be true, as stated in defendant’s brief, that the defendant claims title under a sale made at a different time from any mentioned in plaintiff’s petition, that fact can only be made available by affirmative pleading on his part.; it cannot be reached by demurrer. [354] 4. Pleading: constmction The only statement of the petition tending to sustain the claim that it states facts wThich avoids the cause of action, is the statement above set out; that paq no ^Q-^iedge of the claims of said 'defendant, or that any taxes were unpaid, or the lots not redeemed, wnbil the tax deeds were recorded. This language construed most strongly against the plaintiff, might possibly be made to mean that plaintiff did know after the tax deeds were recorded that some taxes were unpaid and that the lots Were not redeemed. But this rule of construction does not obtain under our statute. In the construction of the pleading, for the purpose of determining its effect, its .allegations shall be liberally construed, with a view to substantive justice between the parties. Rev. § 2951. Applying this rule to the plaintiff’s petition, it does state a cause of equitable action and does.not avoid the same. Reversed.