Hintrager v. Hennessy , 46 Iowa 600 ( 1877 )

Servers, J.

The following are the undisputed facts: The property in controversy was sold in May and December, 1861, for the taxes of 1858, and on the 5th day of May, 1871, the treasurer, in pursuance of such sales, executed a deed to the plaintiff for the lots in controversy, and the same day this action was commenced by placing in the hands of the sheriff, with intent to be served immediately, an original notice which was served on the defendant the succeeding day.

The defendant, or those under whom he claims, was in possession of the property at the time it was assessed and has been in possession ever since.

i tax saleitationsf purciiaser. The plaintiff, it will be seen, was entitled to a deed for all the property as early as December, 1864. If, therefore, the action is barred in five years from the sale, or five years from the time he was entitled to a deed, he cannot recover. The statute is as follows: “No action for the recovei7 °f real property sold for the non-payment of taxes shall lie unless the same be brought within five years after the date of the sale for taxes.” Revision, Sec. 790; Code, Sec. 902.

It was held in Eldridge v. Kuehl, 27 Iowa, 160, as to the owner, the word “sale” meant a completed sale, and as to such owner the bar of the statute did not become complete until five years after the deed was executed and recorded. This ruling was placed on the ground that as the purchaser at the sale received a certificate of purchase only, which he might keep in his pocket until the expiration of five years from the sale, it would be both unjust and unconstitutional to limit the action by the owner to five years from the sale. This decision does not necessarily determine when the statute begins to run as to the purchaser, nor does the reasoning on wliieh it is based include him.

It was held in Brown & Sully v. Painter, 38 Iowa, 456, that the statute applied to the purchaser as well as the owner, and that the action as to the former where the latter was in the actual occupation of the premises was barred in five years from the recording of the deed. It therefore only remains to be determined whether the plaintiff can by his own act prevent the running of the statute against him, or in other words whether by his failure to call for a deed at the time he was entitled thereto under the law he can prevent the running of the statute.

It is made the duty of the treasurer to make out the deed immediately after the expiration of three years from the sale and deliver the same to the purchaser upon the return of the certificate. Eev., Sec. 781. This statute, which was in force at the time the plaintiff became entitled to a deed, has been materially changed by the Code, section 894. The presumption is that the treasurer would promptly perform his duty, but he could only make and deliver the deed xrpon the return of the certificate of purchase. It is, therefore, incumbent on the purchaser to return the certificate and demand the deed. There is no evidence tending to show that the plaintiff called for a deed previous to May 5, 1871, and when he asked for it he got it.

It has been held by this court when a party has a right of action which he cannot enforce in the courts until he has first presented the claim on which it is founded to the board of supervisors for their allowance or rejection, that the statute begins to run when the cause of action accrued and not from the presentation to the board of supervisors. Baker v. Johnson County, 33 Iowa, 151. See, also, Codman v. Rogers, 10 Pick., 111.

It is unnecessary to determine whether the statute begins to run at the sale or when the plaintiff’s right to a deed culminated. The statute uses the word sale, and nothing whatever is said as to the deed or its execution. If the statute begins to run at the sale as to the purchaser, he would have two years in which to bring his action after his right to the deed became perfect. This would be a reasonable time within which to bring his action, and we are not prepared to say such a ruling would be unjust, and certainly it would not be unconstitutional. But however this may be, we have no hesitation in holding that as to the purchaser the sale became complete whenever his right to a deed became perfect, and that the statute as to him began to run at that time if not before. In other words, he cannot, by his own act or laches, prevent the running of the statute. It would be unjust and unreasonable to hold otherwise, for if the purchaser may delay taking a. deed for five years, why not for ten, or such other period of time when he feels satisfied the owner could not, owing to the lapse of time, death of witnesses or destruction of records prove the sale fraudulent or void. In the present case it may be safely assumed that it is more difficult for the defendant to prove the property was exempt from taxation, or that there was no assessment than it would have been if the action had been brought within five years from the time the plaintiff became entitled to a deed.

It is stated by one of the counsel for defendant that both parties appealed, but we find no evidence of such fact in the abstract. The judgment of the District Court is, therefore,

Affirmed.