Ellsworth v. Cordrey

Rothrock, J. 1. Tax Sale and Deed: agent op owner cannot acquire tax title: nor can his assignee. I. It appears from the evidence that the defendant was a non-resident of the state, and R. H. Eastman & Co. were land and tax-paying agents at Clarion, the county seat of Wright county, and had defendant’s name on their customers’ books as 0ne ot those tor whom they acted as agents m the payment of taxes, and that the land in controversy was assessed in the name of the defendant. A sale of the land was had for the taxes of the year 1874, and Eastman &. Co. made redemption from that sale with money sent to them by defendant for that purpose. The firm notified the defendant of the amount of the taxes for the year 1875, and the evidence as to whether the defendant remitted the amount for that year is conflicting and not at all satisfactory. The taxes for that year were not paid, however, and in October, 1876, the land was sold for the tax of 1875. One forty-acre tract was purchased by George A. McKay, a member of the partnership of Eastman & Co., another was purchased by one Parmlee, and the other by one Zelie. Parmlee assigned his certificate of purchase to McKay, and he assigned that, and the one for the forty purchased by himself, to the plaintiff, and Zelie [677] also assigned bis certificate to the plaintiff, and the plaintiff’s title is based upon deeds issued upon these certificates. . It is claimed by the defendant that the purchase by McKay, and the purchase of the Parmlee certificate by McKajr, conferred no right on him which he could assign to Ellsworth, because, at the time of the tax sale, McKay was the agent of the defendant in the payment of his taxes, and could acquire no rights as against him. It is conceded that a party charged with the payment of taxes, as agent, cannot acquire a tax title to his principal’s land. Put plaintiff contends that McKay was not the agent of the defendant; that, if the defendant failed to place the money in the hands of Eastman & Co. to pay the taxes, the employment or agency then ceased. Put we think the evidence shows pretty clearly that the agency existed at the time of the sale, and afterwards. It appears that the firm of Eastman & Co. was dissolved in April, 1876, and that McKay continued the business, and paid the tax of 1876 on the land with money furnished by the defendant, and sent him a receipt, and it does not appear that he then, or at any other time, although in correspondence with the defendant, notified him that he or any other person had purchased his land at tax sale in October, 1876. In view of these undisputed facts, it ought to go without saying, that any right acquired by McKay was a fraud upon the defendant, no matter whether he had the money in his hands to pay the taxes at the time of the sale or not. This disposes of the case as to the. two forties purchased at the tax sale by McKay and Parmlee. The plaintiff can take no greater right than McKay had, and the title to this part of the land will be quieted in the defendant. II. The rights of the parties in the forty-acre tract purchased at the tax sale by Zelie remain to be determined. It does not appear that there was any collusion between McKay and Zelie, and, even if the money to pay the tax for which' the land was sold was sent by the defendant to McKay before the sale, that fact could not affect any right of Zelie. [678] 2. -: redemption after deed made: inaccurate statement of treasurer: no relief in equity. It is claimed by defendant that he should be permitted to redeem from the sale, because, long after the sale, and when advised thereof, the treasurer of the county gave the defendant false information as to the amount ^eeessary to redeem. It is true that, in answer letters of inquiry from the defendant, the treasurer, in October, 1879, and in December of the same year, made statements of the amount necessary to redeem the land. In one of these letters it was stated that it would cost about sixty dollars to redeem, and if that was too much the balance would be returned, and if not enough the defendant would be notified. There was nothing- in these letters which should have deceived the plaintiff, even if amount’s were not accurately stated. He still knew that his land had been sold, and an inaccurate statement of the amount necessary to redeem is not a ground for equitable relief. He should have made redemption, and he had no reason ■ to believe that any one would redeem for him. 3.. -: -: defective notice of expiration of time of redemption. III. Next, it is urged that the notice of the expiration of the time for redemption, as provided in section 894 of the Code, was insufficient to authorize the making of the tax deed by the treasurer. The evidence shows that the sa,le was made on the second day of October, 1876. It appears from an affidavit made by the publisher of the Wright County Monitor, a newspaper published in Wright county, that a notice was published in that paper. We have held that the affidavit of the proprietor of a newspaper, that the publication was made, is not a compliance with section 894 of the Code. American Missionary Association v. Smith, 59 Iowa, 704. In the. case at bar, the holder of the certificate of sale made affidavit that the publication was made for three consecutive weeks, but this affidavit does not state when the publication was made. ■ The period for redemption does not expire until ninty days after the proper notice for expiration of the time for redemption has been given, and proper proof of service has been made. As there [679] is no such proof of service on file with the treasurer, the period for redemption has not yet expired, and the defendant is entitled do redeem the forty acres now under consideration, by paying the amount necessary to redeem from the sale, as provided by law. 4.--: purchased by agent: redemption bye owner: terms of. IY. It having been determined that the sales of the eighty acres to McKay and Parmlee were invalid, and that the treasurer’s deeds conferred no title upon the plaintiff, we are required to fix the rights of the parties as to the taxes subsequently paid upon the land. And here we may say that we think the evidence does not establish the fact that thé defendant had in the hands of McKay, his agent, sufficient money to pay the taxes upon the land for the year 1875. While McKay’s agency existed, he could not acquire a tax title as against his principal, yet his purchase at the tax sale was not-void, but voidable. In such case, the right and claim of the state and county to the taxes passed to him and to his aisignee, and the defendant should pay to the plaintiff the same amount he would now have to pay to the treasurer, in case the taxes had not been paid by the claimant under the tax sale. Everett v. Beebe, 37 Iowa, 452; Light v. West, 42 Id., 138; Besore v. Dosh, 43, Id., 211. The order made in the court below, apportioning the costs in that court, will not be disturbed. Upon the plaintiff’s appeal the cause will be affirmed, and upon the defendant’s, appeal the decree will be reversed as to all the land, upon payment of the amount necessary to redeem the forty acres purchased by Zelie, and upon the payment of the proper amount of taxes, interest and penalties upon the other eighty acres iru controversy; and plaintiffs will pay the costs in this court.. Reversed.