Pearson v. Robinson , 44 Iowa 413 ( 1876 )

Day, J.

I. By the ruling upon the demurrer and the legal conclusion made the basis of the decree, the court below determined that the right to redeem from a tax sale exists until the deed is executed, even if this should extend the time beyond three years from the date of sale. .

x tax sale: fromAvíieuto be made. Chapter 173, Laws 1862, section 13, provides that real property sold for delinquent taxes may be redeemed at any time before the expiration of three years from the date °í tlie sale.. The legislature might have proyided that, upon a sale of land for taxes, a deed should be executed to the purchaser, and might have refused to make any provision for redemption. But,'very wisely, a diferent course has been pursued, and the statute provides that real property so sold may be redeemed. May be redeemed when? The statute says “ may be redeemed at any time before the expiration of three years from the date of the sale.” As the right to redeem is created by the statute, it must be exercised within the time prescribed in the statute. The conferring of a right to redeem at any time before the expii’ation of three years as effectually negatives the right to redeem after that time, as though the statute had expressly declared that after three years from the sale there shall be no redemption. This is plain, when it is considered that if the statute had not provided for redemption there could have been none. When, then, the statute says redemption may be made before the expiration of three years, courts cannot declare that it shall be made after that time. When a statute creates a right, and prescribes the time and manner of exercising it, an inhibition is implied upon exercising it in another manner and time. The case of a sale upon execution is analogous. Real property sold upon execution, without appraisement, may be redeemed within one year from the date of sale. It has never been claimed that this time would be extended by the failure to take a deed.

It is true, the legal title does not vest in the purchaser at a tax sale until he procures a deed. Nor does the legal title vest in the purchaser of real property at sheriff’s sale until the execution of a deed. It is claimed that, until a purchaser at a tax sale obtains a deed, he has a mere lien for the taxes advanced and penalties. In a qualified sense, this is true; but it does not follow that this lien may be displaced at any time, notwithstanding the limitation of the statute. The deed becomes conclusive of many things. At any time before the deed is executed, the owner may avail himself of many irregularities or omissions, which ho would be estopped by the execution of the deed from insisting upon. But, if the sale has in all respects been regularly conducted, and the preceding steps have been properly taken, so that the owner of the land is entitled simply to his right to redeem, he must exercise that right before the expiration of the time limited by statute, whether a deed has been executed or not. See Eldridge v. Kuehl, 27 Iowa, 160 (174); Spengin v. Forry, 37 Id., 242.

2_. eoml)i. nation. II. The plaintiff appeals from the finding of the court that there was no illegal combination among the bidders, so as to prevent fair competition. The testimony shows that there were several persons present, bidding at the sale. Charles L. Bailey was there bidding in lands for G. L. Bailey, agent for L. F. Parker. A. H. Lawrence was present, acting as the agent of the defendant, F. M. Robinson. Lawrence bid in the lands in his own name, and then assigned the certificate to Robinson.' Anxious to procure as much land as possible for his principal, Lawrence procured Charles L. Bailey to bid in some lands for Robinson. Until about the middle of the forenoon, O. L. Bailey indicated in his bid that the lands were not for himself, and had them marked alternately to Robinson and to Parker. Afterward, O. L. Bailey bid in his own name, assigned the certificates in blank, and delivered part to Lawrence and part to G. L. Bailey. The land in controversy was struck off to defendant Robinson in his own name. It must, therefore, have been purchased by Bailey while he was indicating the persons for whom he was bidding. The evidence does not show that there was any combination or arrangement among the bidders, as to the manner or order of bidding.

The only facts which are shown are that Bailey bid in for Robinson and for Parker, indicating that fact in his bids, and that Lawrence bid in his own name lands intended for, and which were afterward assigned to, the defendant Robinson.

We cannot see how the fact that Bailey bid for two parties can vitiate the sales, especially, as long as he indicated the fact that he was so bidding and made no concealment. Nor does the fact that Lawrence and Bailey both bid for Robinson render the sale to him fraudulent.

It is true the other bidders, if they had known that Lawrence was bidding for Robinson, might have concluded that he was trying to overreach them, and in a spirit of rivalry, to prevent him from accomplishing his purpose, they might have bid down the quantity. But the owner of the land has no legal ground of complaint that this species of rivalry was not created, notwithstanding the fact that it might have inured to his advantage, if it had existed.

We are of opinion that the court rightly held that the sale was not invalid on account of fraud.

For the error in sustaining the demurrer, and holding that plaintiff might redeem after three years, the judgment is

Reversed,

Adams, J., being of counsel, took no part. Rothrock, J., dissents.