Martin v. Cole

Beck, J. — -The relief claimed in the three cases is the same, namely, the setting aside of certain tax deeds upon different lands, and is claimed in each case upon nearly the same state of facts, which, it is insisted, avoids the title of the defendant to the property in question. It is enough to say of the pleadings that they put in issue the sufficiency of the proceedings and conveyances un<Jer which defendant claims title. Our present duty is, to gather from the abstract before us* the facts upon which the determination of the case depends. . The respective plaintiffs derive title to the lands claimed by each, by regular chain of conveyances from the grantees of the government. Defendant’s title is based upon a sale of the lands for the taxes .of 1860, had in 1862. The validity of this — 143 — tax title is involved in the questions before us. Our first care is to determine the facts upon which these questions depend for solution, and then apply the law thereto: I. The lands were subject to taxation for the year 1859, and were for that year listed arid assessed (appraised) in eighty acre tracts to unknown owners. Upon this assessment the lists were transcribed into the tax books of 1860 for taxation. This was sufficient for that year. See Acts 7th General Assembly, Chap. 152, § 30, Eev. § 720. We do not understand that the sufficiency of the assessment is denied by plaintiffs i taxation Sy :reví-a denee. II.' That there was a levy of the taxes for the year 1860 is claimed by plaintiffs. Upon this question we are not permitted to entertain a doubt, for the fact of a levy, at the proper time, by the county board of equalization entrusted by ^he bw *bat appears from the records kept py tpe coimty judge, one of the officers of the board. Acts 7th General Assembly, Chap. 152, §§ 31 and 38, Eev. §§ 808 and 323, and context. But plaintiffs assail this record and attempt to impeach it, as having been made without authority and surreptitiously. In this they fail.t The order ' of levy has affixed to it the names of the officers constituting the board of equalization. It is shown that their names are not in the hand writing of two of them, the surveyor and treasurer. But this fact may be admitted and yet the record is not impeached. As a record it would be good without the signatures. An entry of the act of the board upon the record sufficiently showing the levy is all that was required. The record in that case would be evidence of the levy. It is probable that the order was made upon a separate paper signed by the officers, and then copied into the record. Under this state of facts the record would-be sufficient without the production of the paper bearing the signatures, for it would be in' fact the record of the action of the board. An attempt is made to show by one of the 'officers that in fact no levy was made. Without questioning the competency of the evidence, it is sufficient to remark that the attempt failed. The most that can be said of this evidence is, that the officer referred to did not remember making the levy. . — 144 — III. A warrant complying with, the requirements of the law was duly issued at the proper time, and attached to the tax list. No question is made as to its sufficiency. 2. tax saijs : combination, IV. The next inquiry relates to the sale. Plaintiffs insist that there was, in truth, no sale of the lands or that if it be found a sale was had it is.fraudulent and void, on account of combination among the bidders, with the knowledge of the officers conducting it. Upon the first branch of plaintiffs’ position the evidence to our minds seems clear and satisfactory. In the first place there is a record of the sale. Rut without considering-here the character of the record as evidence, our minds are brought to the conclusion upon other proof, offered by the parties, that there was in fact a sale; that the lands were offered in the usual and proper manner and struck off to bidders, or rather to the bidder who became the purchaser. The great preponderance of the parol evidence is to this effect. One witness testifies that there was no sale, that parties desiring to purchase, himself among the number, gave to the treasurer a list of lands they desired to secure, and they were entered upon the list as sold to them. But his'evidence is by no means explicit as to the lands in' question; he speaks more particularly of the lands bought by himself. Besides he was not present during all the time the sale was in progress. Other witnesses' testify positively, directly, and plainly, upon the subject and assert that there was a sale conducted in the lawful manner. The evidence, we think, also fails to establish the fraudulent combination charged by plaintiffs. The same witness just referred to testifies to something of that character. He states that the lands purchased by him were subject to such an arrangement, but he fails to show that there was any combination, as to the property in dispute. In truth, however, his evidence upon the point is not clear, nor-is it direct. On the other hand the officers conducting the sale and others, directly deny the existence of such combination, and the agent of the absent purchaser of all the lands in question, who was all the time present, asserts that he was a party to no such a combination and that none existed. We find therefore, from the evi-' — 145 — deuce that there was in fact a sale, and'that the charges of fraud and combination are not sustained. There is no claim that the taxes were paid, or the lands redeemed from the sale. „ , . what consta- or parcel. Y. Having found the lands subject to taxation, that they were legally listed and assessed, that the taxes were levied thereon, that there 'was a warrant for the sale of the lands, that there was a lawful sale and that the taxes were not paid and the lands were not redeemed from the sale, the essential requirements to support a tax title, we come to the next step in the proceedings necessary to divest the owner of his property, that is, the deed. The proceedings and conditions just enumerated are essential and jurisdictional in their character, and without all of them the tax title will be void. McCready v. Sexton & Son, 29 Iowa, 356. May 30, 1865, five deeds were executed' to defendant, each one conveying a section en masse. June 30, 1866, separate deeds were executed for each “forty” in sections 26 and 35 and for each “quarter” in sections 27 and'34, and September 26,1866, for each “quarter” in section 36. September 22, 1869, separate deeds were issued for each “forty” of sections 27, 34 and 36. December 4, 1869, separate deeds were issued for each, “eighty” of all the sections. The deeds executed after those first made were for the purpose of correcting or supplying supposed defects therein which consisted in the recital of the sale of the lands in sections and in conveying them in the same manner. This court has uniformly held that a deed showing a sale for taxes of two or more tracts or parcels of land together is void, and will defeat the title based thereon. See Penn v. Clemans, 19 Iowa, 372; Boardman v. Bourne, 20 Iowa, 134; Byam v. Cook, 21 Iowa, 392; Furguson v. Heath, 21 Iowa, 438; Harper v. Sexton, 22 Iowa, 442; Ackley v. Sexton, 24 Iowa, 321; Ware v. Thompson, 29 Iowa, 67. These are eases in which distinct tracts or parcels from two — 146 — to fourteen were sold and conveyed together. The point settled by these decisions is, that deeds showing such a state of ,facts are void. In them will be found no rules to enable us to determine what division of land is to be considered a tract or parcel, and the point is not made or determined. In Corbin v. De Wolf, 25 Iowa, 125, followed by Bulkley v. Callanan, 32 Iowa, 461, it is held that the sale of and deed for two government subdivisions, being assessed as one tract to a known owner, are authorized by law. The ground of this decision is that the two sub-divisions, “forties,55 are but moieties of another sub-division, an “eighty,55 which is itself a tract or parcel within the meaning of the law and the decisions of this court. The terms “tract55 and “parcel55 may quite as properly be applied to a quarter section, a half section, or a section, as to a “forty55 or “eighty.55 Each of them is a government sub-division and they are commonly thus designated in the language of the courts, the government land officers and the people. When lands are in different sections or quarters, or are not contiguous and cannot be described as one tract by one description, they do not in fact constitute one tract and cannot so be designated. If two “forties55 properly forming an “eighty55may be sold together as one tract, no reason can be given why four “forties55 which together constitute a quarter section may-not in the same way be disposed of as one tract. The same course of argument requires us to concede that four quarters, eight “eighties,55 ór sixteen “forties,55 which are but fractions constituting a section, may be considered as one tract or parcel and so sold. There is no escape from this conclusion. In truth, the section is the unit of our system for the division of lands. Parcels of less quantity into which they are sub-divided are but fractions of the sections. These, while they constitute townships, are never spoken of as fractions thereof. We conclude, therefore, that the term parcel or tract is properly applied to a section. • Prior to Chapter 25, Acts Extra Session 8th General Assembly, lands were required to be advertised in tracts of the same description in which they were found upon the tax list, — 147 — but that Act, § 4, provides that “when the name of the 'owner of any delinquent lands or town lots is unknown,” the advertisement of sale “shall embrace the largest quantity practicable in each description.” This provision - evidently means that when the owner is unknown, a section shall not be advertised in sixteen descriptions of “forties,” nor in eight as “eighties,” nor in four quarters, but in one as a section. Rev. § 765, provides that the county treasurer shall “offer for sale, separately, each tract or parcel of real property advertised for sale.” The reference to the tract or parcel advertised unmistakably indicates that the sale shall be in such tracts or parcels as are found in the advertisement of sale; of this construction there can be no question. Thus far we have seen that a section is a tract or parcel and is properly designated in one description, and that it must be so advertised and sold. Section 781 directs the treasurer to “make out a deed for each lot or parcel of land sold.” It follows that if a section of land was properly advertised and sold as a “tract or parcel,” it. may be conveyed, .by the same description. We find no escape from the foregoing conclusions. We confess that some of us have labored long, earnestly and • anxiously to establish the position that the sale of a section of land en masse is not authorized by law. The thought that laud in this wholesale manner may be sold for taxes is repugnant to our feelings, and against our views of right. We see, or suppose we see, doors opened wide by this law for oppression and unconscionable-practices. - With the law as it is we have nothing to do but to construe and interpret its language, and enforce its provisions. We would most gladly, were we able to do so, establish a different interpretation, and, remembering the remark of an eminent English judge, that courts should be astute, subtle, cunning, in the interpretation of the law to the end that justice may be attained, we have sought every avenue of escape from the conclusion announced, but have found all barred and secured by principle, precedent, and inexorable arguments. • ■ The jurisdictional matters being regular, and the deeds in conformity with the law, we find all the other questions settled — 148 — by prior decisions of this court. They relate to the manner of the sale and other proceedings. Of the regularity of these the deed is conclusive evidence. McCready v. Sexton & Son, 29 Iowa, 356; Rima v. Cowan, 31 Iowa, 125. Whatever is found in the record upon these subjects need not be considered, as we are required to regard the deed as evidence, not to be contradicted,, of their sufficiency. The deeds made subsequently to those first executed have no effect upon defendant’s title. If the first are sufficient the others cannot invalidate or confuse the title, or prejudice either party. McCready v. Sexton & Son, supra; Bulkley v. Callanan, supra; Gray v. Coan, 30 Iowa, 536. Other questions, as the refusal of the referee to continue the cause upon application of defendant, are unimportant, and need not be considered. The petition in each case will be dismissed. One third of the costs of printing abstracts, and additional abstracts filed by defendant, and of amended abstracts filed by plaintiffs, will be taxed against the plaintiffs; the'defendant will pay two-. thirds of such costs, and judgment will be rendered accordingly. Plaintiffs will each pay equal portions of the one-third' of these costs adj udged against them. All other costs will be paid by plaintiffs as they are taxed in each suit. Reversed.