Adams v. Burdick

Adams, Ch. J. i tax sale and to redeem1?6 ticeno“súf-°’ flcieut. The plaintiff’s claim is not set up in different counts, and while he asks that his title be quieted, an<^ ma^es some allegations which might be designed to show that he is entitled to that relief, 7et his unqualified offer to redeem we regard as sufficient to determine that the action is an action for redemption. Such being our view, we have only to consider whether the notice of the expiration of redemption is sufficient, and, if not, whether the plaintiff is in condition to be allowed to take advantage of such fact. The notice was given bj publication, and ran to twentj-one persons, and covered a large number of tracts of land in different townships. The land in question appears to have been taxed in the name of one of the persons mentioned. In whose name or names the other tracts were taxed does not appear, nor is it material. It seems clear to us that such a notice would not, probablj, serve the office of the notice for which the statute provides, and that is, to bring to the knowledge of the person entitled to redeem the fact that the time of redemption was about to expire. Not onlj is this so, but the design of the statute appears from an express provision. The cost of publication is to be added to the amount necessarj to redeem. Now, manifestlj, the cost of publication of the notice in this case, which is more than twice as long as it should have been, should not all be added to the amount necessarj to enable the plaintiff to redeem. But there is no provision for an apportionment, nor would it be possible to make a just apportionment, for there is nothing to show to [668] whom any given tract or tracts were taxed, or what were subject to a single redemption. White v. Smith, ante, p. 313. It is said by the defendant that these tracts were all covered by a single certificate; but to our mind such fact is not material. We have to say, then, that, in our opinion, the notice is insufficient. 2. tax deed: questtom The defendant, however, contends that, conceding the notice to be insufficient, the court below did not err, because the plaintiff is not in condition to take advantage of such fact, He holds, it appears, under a tax title, and it is said that neither he, nor the person under whom he claims, had title at the time of the sale under which the defendant claims. Section 897 of the Code provides that “ no person shall be permitted to question the title acquired by a treasurer’s deed without first showing that he, or the person under whom he claims had title to the property at the time of the sale, or that the title was obtained from the United States or this state after the sale.” But the object of this provision was, we think, to prevent a stranger from questioning a tax title. A claimant under a prior tax title is not such person. Besides, we think that he comes strictly within the provision of the statute. He becomes, by statute, the owner of “ all right, title, interest and estate of the former owner in and to the land conveyed, and also all the right, title, interest and claim of the state and county thereto.” taxesduVf pieading. One more point is made by the defendant. He contends that it is neither averred nor proven that all the taxes due on property have been paid by the plaintiff, or •' by the person under whom he claims. The stat-above cited provides that “ no person shall be permitted to question the title,” etc., “ * * * * without first showing that all taxes due upon the property have been paid by such person, or the person under whom he claims title, as aforesaid.” It was held in Taylor v. Ormsby, 66 Iowa, 109, that the taxes referred to were not those paid by the holder of the tax title questioned, but those in which [669] the public was concerned. Whether, under this provision, the plaintiff should aver in his petition the payment of such taxes, or whether the provision pertains merely to the mode of trial, we need not determine. As the defendant had no right to demand of plaintiff the payment of those taxes, the objection raised by him was, so far as he is concerned, purely technical. If he desired, then, to take advantage of the petition for want of such averment, he should have done so by demurrer. So far as the evidence is concerned we have this to say: The taxes up to the time of the commencement of the action appear to have been paid. It may be presumed from the sale that those prior to it were paid, and the defendant’s evidence shows that subsequent taxes were paid. In our opinion, the plaintiff is still entitled to redeem as if there had been no attempt to serve notice of the expiration of the time for redemption, and the amount which he should pay is the amount which would be required if he were proceeding to make redemption under the statute, without action. Eeversed.