Peirce v. Weare

Cole, T. — I. The lands in controversy were entered jointly by Horace Everett and Roswell G-. Peirce, Tune 15, 1855. A judgment was rendered against Peirce, August 8, 1871, and thereunder, upon execution, the undivided half of said land was sold to the plaintiff, Tno. Peirce, May 11, 1872. These are the facts constituting plaintiff’s title. . The undivided half of the lands (that being the interest in controversy) was sold October 3, I860,- for the delinquent taxes of 1857-8-9, to Isaac G. Lash, and on December 21, 1865, no redemption having been made, the treasurer executed a tax deed therefor to said Lash. On October 26, 1868, Lash conveyed to Geo. Weare, who thereafter conveyed the-same to this defendant. These facts constitute the basis of the defendant’s title. i. taxation: •assessment, It is claimed by the plaintiff that the tax sale and deed are invalid because there was no assessment of real property in Woodbury county for 1857, and no levy of any taxes for that year, and that the levy made in September, 1858, by the board of equalization, was not valid. It is also insisted that the taxes for the year 1858 are void because the revenue act of 1857 provided for the assessment of real property in 1857 and every two years thereafter, and that these lands were assessed in 1858. for that year and for 1857. In our view Sec. 3 of the Act of March 20, 1858, authorized the assessment to be made in that year for the year 1857, and such assessment would stand for both the years 1857 and 1858; that law also provided for the levy of the taxes “as how prescribed by law.” [381] 2.-: —: íacto.ls de [380] Whether the officers making the levy 'were legally authorized to make the levy under the law in force when the act of [381] 1858 was passed, and which was repealed prior to their action, we need not determine, since it is clear'that the persons acting as a board of equalization and making the levy were at least officers defacto, and under Revision, Sec. 786, their acts are “of the same validity as acts of officers' de jure.” This provision of the law also answers the objection made by the plaintiff to the levy of the taxes in 1859 which was made by J. M. Field, acting county judge, and Hedges, the treasurer and recorder. For, although Campbell may have been the county judge, yet Field was acting as such and was therefore the county judge defacto, and his acts as such were valid. 3. deed: notice. ‘ II. The defendant pleaded and relied upon the statute of limitations (Revision, See.790; Code, Sec. 902), which limits the right of action to five years after the treas-_ urer’s deed is executed and recorded. The treasurer’s tax deed in this case was executed December 21, 1865, and filed for record and recorded December 23, 1865; this action was commenced on the 23d of October, 1873, which was more than five years after the record of the deed. The action is, therefore, barred unless it be taken. out of the statute by the failure to properly index and record it.- As to the record there is no question. The index was as follows: “Grantor, Treasurer of Woodbury county; grantee, Israel G. Lash; date of file, December 23, 1865, 12 m.; date of instrument, December 21,1865; character, tax deed; vol. E, page 47-49; desci’iption of property, jiarts of sections 20 and 29-88-47; remarks, see record.” That this index was sufficient to impart constructive notice has been by this court several times in effect decided. See Hodges, adrrdr, v. Lovell, 25 Iowa, 97 and cases there cited. 4 tax deed • limitation. All the objections to the tax deed and the proceedings prior thereto'relate to the manner of the assessment or levy; and irregularities in respect of such matters do not so affect the deed as to prevent the holder of such deed from relying upon it as sufficient to constitute a bar under the statute of limitations. See Eldridge v. Kuehl, 27 Iowa, 173; Thomas v. Stickle, 32 Iowa, 71; Douglas v. Tul [382] lock, 34 Iowa, 262; Jeffrey v. Brokaw, 35 Iowa, 505; Pillow v. Roberts, 13 Howard, U. S., 472. The sale of an undivided half of the land upon which the taxes remained unpaid, the taxes having been paid upon the other undivided half by the owner thereof, was competent and proper. The case of Cragin v. Henry et al., 40 Iowa, 158, only decided that it is not proper to sell an undivided interest in a tract of land for the taxes due on the whole thereof. Reversed.