Peck v. Sexton & Son

Day, J. — Section 902 of the Code of 1873 provides that • “no action for the recovery of real property sold for the nonpayment of taxes shall lie, unless the same be brought within five years after the treasurer’s deed is executed and recorded.” [568] i. tax deed: . session6 sions. This is substantially the same as section 790 of the Revision, construed in Brown & Sully v. Painter, 38 Iowa, 456, which case holds that where the original owner of the laT1d remains in the open, actual, adverse possession 0£ 2aB(j for the period of five years after recording the tax deed, this section bars the action of the purchaser for the recovery of the land. In this case the plaintiff has been in the open, actual, adverse possession of the land for more than twenty years, and seven and one-half year’s had elapsed at the time of the commencement of the action since the recording of the tax deed. The deed, therefore, whilst it may create a cloud upon plaintiff’s title, confers no rights upon defendants which can be made the basis of a legal action. The defendants are out opossession, and their right of action for the recovery of possession is barred by the statute of limitations. Yet an abstract of title would show that the lands had been sold for taxes and a deed had been made to defendants. The facts to defeat the validity of this deed, to-wit, the continued possession of plaintiff, rest in parol. 2 titde: ac- ' equitebi^jurisdiction. Any abstract of title exhibited by plaintiff would necessarily be defective. To remove this defect, and the cloud exist-uPon his title, he may resort to an action in Standish v. Dow, 21 Iowa, 363, and authorities cited; Crook v. Andrews, 40 N. Y., 547; Newell v. Wheeler, 48 N. Y., 486. s. tax deed: limitations, Appellants claim that this action is itself barred by the samé statute which bars defendants’ right of action under the deed. The statute reads : “No action-for the recovery of real property sold for the non-payment of taxes shall lie.” The plaintiff is the original owner and has always been in possession. A tax deed upon which defendants can maintain no action, which is unavailing for any purpose except to cast a cloud upon the title of plaintiff, is outstanding in defendants. To remove this cloud, so that plaintiff’s title may appear of record clear and complete, is the only object sought by the action. So long as plaintiff remains in possession-of [569] the premises, and the tax title is outstanding as a cloud upon his title, the statute of limitations cannot bar his action for á removal of the cloud thus created. ' We are of opinion that the action is maintainable, and that the court did not err in granting the plaintiff the relief sought. Affirmed.