Preston v. Van Gorder

Miller, J. — -I. This cause is submitted by counsel on both sides ' without argument or brief of any kind. We are, therefore, without the aid of counsel in our investigation of the important questions involved. Section 759 of the Revision of 1860 provides that, “ on the first day of February the unpaid taxes, of whatever description, for the preceding year shall become delinquent, and shall draw interest, etc., and taxes upon real property are hereby made a perpetual lien thereupon against all persons, except the United States and this State.” [252] Section 768 eiaacts that, “ on the first Monday of October ■in eacli year, the county treasurer is required to offer at public sale at the court-house, or, if there be no court-house, at the office of the county treasurer, all lands, town lots, or other real property, on which taxes of amy description for the preceding year or years, shall have been delinquent and remain due and unpaid, and such, sale shall be made for and inpayment of the total amount of taxes, interest am,d costs clue mid umpcdd on such real property P The treasurer is required, by section 781, “ after the expiration of the term of three years from the date of sale of any land for taxes,” under the statute, to “ make out a deed for each lot or parcel of land sold, and remaining unredeemed, and deliver the same to the purchaser upon the return of the certificate of purchase.” And section 781, in defining the effect of the treasurer’s deed, provides, that when executed substantially as required by the statute, and duly recorded, it “ shall vest in the purchaser all the right, title, interest and estate of the former owner in and to the land conveyed, a/nd also, all the right, title, interest and claim of the State and county thereto,” etc. We have thus recited the various portions of the statute, from which our conclusions are to be deduced; and it will be seen, in the first place, that the taxes levied on lands are made a “ perpetual lien thereon.” This must be understood, of course, as a lien continuing until divested in the manner provided by law. In the next place, it is provided, that, at a time specified, the treasurer of the county is authorized and required to sell, in the manner provided) all lands, etc., on which taxes of miy description for the preceding year or years shall have been delinquent and remain due and unpaid, “ and such sale shall be made for and inpayment of the total amoumt of taxes, eta., due and unpaid on such real property.” Stronger or clearer language could, with difficulty, have been chosen to convey the intention of the legislature, that when taxes upon real [253] property for several years have become delinquent, and remain due and unpaid, the land must be sold at a single sale for the total amount of taxes thus- due and unpaid. The treasurer possesses no power or authority, independent of the statute, to sell lands for delinquent taxes-. His authority is derived alone from the statute, and in the exercise of the authority conferred he must conform strictly thereto. Abel v. Cross, 17 Iowa, 171. This section gives the treasurer no discretion to sell lands now, for the delinquent taxes of the preceding year, and again for those of a-former year. He is “ required to offer” them “ at public sale ” (not sales), “ and such sale ” (the only sale authorized by law) “ shall be made for and in payment of the total amount of taxes, eta., due and twvpaid ” thereon. ' He has authority to make but one sale for delinquent taxes then due and unpaid. This is clearly the limit of his authority under-section 763, and no where-else in the statute do we find any authority for a second sale for taxes delinquent, and unpaid at the time of the first- sale. The statute conferring the authority on the treasurer to sell lands for delinquent taxes also limits it. Beyond the authority thus conferred, he cannot go. If the treasurer fails to sell, as the law requires him to do, “ for the total amount of taxes, interest and costs delinquent,” he may possibly render himself liable on his official bond, but as this question is not before us, we do not pass upon it. II. Again, the statute authorizes the treasurer to make out and deliver to the tax purchaser a. deed for the land if not redeemed within three years from the date of sale, and such deed, when properly executed, acknowledged and recorded, not only conveys to the purchaser all the right, title, interest and estate of the former owner, but also “ all the right, title, interest and claim of the State and county ” to the lands sold. The purchaser, hy his deed, acquires all the right, title, interest and claim of the former owner and [254] of tbe State and. cownty in and to tbe land, and tbe lien of tbe taxes previously assessed tbereon, being included within these terms, is divested. It merges in tbe title conveyed to tbe purchaser. It follows, therefore, that unpaid delinquent taxes for years prior to that for which tbe land was sold are no longer liens tbereon and cannot be enforced against the land thus sold for delinquent taxes. Sections 810 and 811 of tbe Revision, protecting liens in behalf of tbe school and university funds from being divested or aifected by a sale of lands for taxes under tbe revenue statute, has no bearing on tbe questions in this case further than it serves to strengthen tbe views herein expressed. Tbe enactment of these latter sections shows that a sale of lands for taxes was intended to divest all existing bens tbereon except those saved to tbe school and university funds. Tbe order vacating and dissolving tbe injunction must be Reversed.