Lathrop v. Howley , 50 Iowa 39 ( 1878 )

Day, J.

i. tax sale: mu. nicipal charter: demand, The special charter under which Lyons city was acting at the time when the sales under which the plaintiff claims title were made, contains the following . . provisions: The marshal, or such person as, in ease of his absence or disability, the council may appoint of record, shall be the collector of taxes. * * *' When any person’s tax is not paid within a reasonable time after demand the collector may distrain upon personal property liable to taxation, and sell the same as the county collector may sell in like cases. Taxes on real property shall be a lien thereon, and it may be sold therefor if no personal property be found when the tax remains unpaid for four months after publication of the notice of the tax; but demand of the tax must be made a reasonable time before sale, if the supposed owner be found in the city. The collector shall execute and deliver to the purchaser a deed running in the name of the-State.” Acts Fifth General Assembly, chapter 91. After the sale of the lot by the marshal, and before the purchaser became entitled to a deed, the city became incorporated under chapter 10, title 4, of the Code of 1873. Afterward the deeds-in question were executed by the county treasurer. The appellant claims that the county treasurer had no authority to execute these deeds, and that they are, therefore, void. Upon the other hand it is claimed that the treasurer derived authority to execute the deeds under the provisions of section 495 of the Code. In the view which we take of the case we deem it unnecessary now to determine this question.

The special charter of Lyons city, under which the sales in question were made, provides that the collector’s deed shall have the same force and effect as the deed of the treasurer of the county, on sale for county and State taxes, under the law existing at the time. The charter provides, also, that demand of the tax must be made a reasonable time-before sale, if the supposed owner be found in the city. Now, while the deed, whether made by the collector or the treasurer, may be prima facie evidence of the regularity of all prior proceedings, it cannot, under the former decisions of this court, be conclusive evidence that the demand for the tax was made, as provided in the charter. It was admissible for the defendant, notwithstanding the introduction of the deed, to prove affirmatively that no demand for the tax was made upon him. The defendant testified that he had lived in Lyons city for about twenty-five, years, that he knows the marshals of said city-, and that none of them ever demanded the tax in question. The plaintiff introduced no proof upon this subject. It thus appears, affirmatively, that the charter was not complied with, and that the sales were not authorized. Upon the evidence introduced no judgment should have been rendered for the plaintiff. This disposition of the case renders a consideration of the ruling on the demurrer unnecessary. As the cause is not triable ele novo, it must be remanded for a new trial.

Reversed.