Gould v. Thompson , 45 Iowa 450 ( 1877 )

Reck, <L

I. The lands in controversy, with other tracts, were sold for taxes en masse and a deed, so reciting the' sale, was executed to the purchaser. Subsequently another deed was executed upon the same sale, reciting that the lands were sold in parcels as required by law. The defendants claim title under the second deed. The sale as made, and the first deed, were void and did not convey the title to the land, under frequent decisions of this court.

i tax deed etteetof. It is insisted by defendants that as the second deed recites a lawful sale of the property it is conclusive evidence of such ■ cale, as it is a valid instrument executed in pursuance of law. This position is based upon the effect given to tax deeds, lawfully executed, by prior decisions of this court in McCready v. Sexton, 29 Iowa, 356, and other cases involving the same questions. If the second deed was lawfully executed, and is a valid instrument, the defendants’ argument is sound and their conclusion correct. The title of defendants depends wholly upon the validity of this deed, which will now be the subject of our inquiry.

2_. sec_ ond. deed. II. This court has more than once held that after the execution of a tax deed by the treasurer, which is irregular or does not conform in its recitals to the facts, as exhibited by the tax records, another deed conforming thereto and regular upon its face may be executed and will be valid. McCready v. Sexton & Son, 29 Iowa, 356; Genther v. Fuller, 36 Id., 604; Bulkley v. Callanan, 32 Id., 461. But this authority to execute a second deed is conferred upon the treasurer in order to correct errors committed in the first, to the end that the tax deed may conform, in its recitals, conditions and descriptions, to' the tax record and the facts of the case which should appear in the instrument. The authority does not exist for the perversion of truth; it is not conferred to enable the officer to overthrow, by false recitals in a deed, the records upon which it is based. It is to be exercised only to attain the ends of truth and right. This doctrine is found in the cases just cited.

We conclude that the second deed, not being executed to correct a mistake, misdescription, incorrect recital or other matter in-conflict with facts, but on the other hand with the object of perverting truth and falsifying the tax record, is void. Defendants hold no title under it. This conclusion disposes of the case upon defendants’ appeal; the decision of the Circuit Court is affirmed thereon. •

III. The only objection to this judgment made upon plaintiff’s appeal is that costs should not have been taxed against him, having tendered to the defendants the amount they recovered for improvements, taxes, etc. But we do not find that the abstracts show the tender -as claimed by plaintiff. His objection, therefore, is without support. The judgment of the court below will be affirmed also on plaintiff’s appeal. The costs of the appeals will be paid by the party making them.

Affirmed on both appeals.