Lathrop v. Irwin , 96 Iowa 713 ( 1896 )

Deemer, J.

The defendant admits that plaintiff holds tax deeds to the land in question, issued to him in January, 1875, and filed for record April 20, 1875; and that said deeds were issued, pursuant to a sale of land in October, 1871, for taxes purporting to have been assessed and levied thereon for the year 1870; but he claims that there was no valid assessment or valuation of the land by the assessor in either 1869 or in 1870, and that for this reason the deeds are invalid. In proof of his claim he produces the assessor’s books for the years 1869 and 1870, which show that no valuation was placed upon the land for the year 1869 by the assessor, and that no entry whatever was made upon the books for the year 1870; and he claims that this rebuts the presumptive evidence furnished by the tax deed that there was a valid assessment. It is no doubt true that to constitute a valid assessment by the assessor he must not only list the property, but also place a valuation upon it, and return the same to the proper officer; but it does not necessarily follow that because he neglects this there is no valid assessment. At the time this assessment was made the law provided (Revision, section 739) that the board of supervisors, at their regular meetings in June, “shall add to said assessment any taxable property in the county not included in the assessment as returned by the assessors, placing the same in the list of the proper township, and shall assess the value thereof.” The same Revision, at section 747, further provided that “the clerk of the county board of supervisors may correct any clerical or other error in the assessment or tax books, and when any ,such correction affecting the amount of the tax is made, after the books shall be placed in the hands-of the treasurer, he ishall charge the treasurer with all sums added to the several taxes, and credit him with, all deductions therefrom, and report the same to the supervisors.” Another provision of the Revision is. (section 752): “It shall be the duty of the county treasurer to assess any real property subject to taxation, which may have been omitted by the assessor or county clerk, and to collect taxes thereon; and in such cases where real property, subject to taxation, shall be assessed, the words, ‘By Treasurer.’” It is also-provided by section 753 of the same Revision: “In all cases be is required to note opposite the tract or lot not having been assessed by the township assessor, or other proper officer, it is hereby made the duty of the owner thereof, by himself or his agent, to have the same property assessed by the treasurer, and to pay taxes thereon. And no failure of the owner to have such property assessed, or to have the errors in the .assessment corrected; and no irregularity or error or .omission in the assessment of such property, shall affect in any manner the legality of any taxes levied ■thereon; nor affect any right or title to such real property which would have accrued to any party holding ;under or by virtue of a deed executed by the treasurer as provided by this act, had the assessment of such property been in all respects regular and valid. * * , This section of the Revision is retained in our present Code as section 852, so that it is entirely immaterial as .to which law shall be applied to this controversy. It seems that a consideration of these sections of' the Revision and of the Code which we have quoted ought to be sufficient to settle the question presented by this appeal. It is evident that the lands were-assessed by some -one, and a levy of taxes was made as against them, else there could have been no sale. Now, the presumption is that every officer charged with -any duty with reference to this assessment and levy did his duty. When the assessor’s book was returned to the board of supervisors, — as by the Revision it was required to be, — and the board discovered that no valuation or assessment had been made, it became its duty, under section 739 of the Revision, before ■quoted, to assess the value thereof. If the board failed to do its duty, then the clerk of the board of supervisors, when making up the tax book, was ¡authorized, under section 747, to correct any such omission; and if he failed to do it, and the books went to the county treasurer with the omission of a valuation upon the lands in question from the tax books, then it was his duty to make the assessment under section 752. And if each and all of these officers failed to do their duty, then it was incumbent on the owner to have the same 'assessed by the county treasurer under section 753, above set forth. And the law expressly says that no feuch failure of the owner, and no irregularity, error, ¡or omission in the assessment, shall affect the title to 'such real property held by any person under and by .Virtue of a tax deed.' Without, at this time going to ■the extent of holding that the alleged want of valuation of the land cannot be taken advantage of by the owner of the land by reason of the provisions of the law last above quoted, it is enough to say that we will presume that some of these persons who had a duty to perform with reference to the assessment ,of these lands did their duty; and, as the defendant has not negatived these presumptions, he has failed, to overcome the presumptive validity of the tax deed. This proposition we regard as settled by the case of Genther v. Fuller, 36 Iowa, 604, wherein it is held that, Conceding certain matters ought to have been shown by the assessment book, yet it by no means amounted (to proof of their nonexistence. It is there said: ¿“The fact that these matters do not appear in the ¡assessment book does not overcome the evidence (borne by the deed of their existence. It would' be (otherwise if the assessor's books were the only evidence, other than the deed, which the law would ¡receive to establish the facts in question.” It was ¡incumbent on defendant to show, in order to overcome the presumption afforded by the tax deed, that none' of these officers’ did their duty with reference to the ¡assessment of the land for taxes, and, having failed in this, he cannot recover. As supporting our conclusions, see Robinson v. Bank, 48 Iowa, 354; Baker v. Crabb, 73 Iowa, 412 (35 N. W. Rep. 484; Bullis v. Marsh, 56 Iowa, 747 (2 N. W. Rep. 578, 6 N. W. Rep. 177); Leavitt v. Watson, 37 Iowa, 93; Love v. Welch, 33 Iowa, 192; Eldridge v. Kuehl, 27 Iowa, 160; Ware v. Little, 35 Iowa, 234; Soukup v. Investment Co., 84 Iowa, 448 (51 N. W. Rep. 165); Griffin v. Tuttle, 74 Iowa, 219 (37 N. W. Rep. 167); Slocum v. Slocum, 70 Iowa, 259 (30 N. W. Rep. 562); Hintrager v. Kiene, 62 Iowa, 605 (15 N. W. Rep. 568, 17 N. W. Rep. 910). The cases of Early v. Whittingham, 43 Iowa, 162; Easton v. Savery, 44 Iowa, 654; and Land Co. v. Scott, 44 Iowa, 143,—are clearly not in point, and none of then decide the mooted question.

¡ But, aside from all this, the record affirmatively shows that the appellant has paid no taxes on these lands since he obtained his patent in the year 1857. .They have been sold for the taxes of each and every year up to and including the year 1870. Since that time the plaintiff has paid all the demands made by ■the state, either by redeeming from sale or paying directly to the county treasurer. Plaintiff took possession of the property in the year 1889, and has since used and occupied the same, and has expended thereon in improvements nearly three hundred dollars. These are strong grounds for holding that defendant is not entitled to any relief at the hands of a court of equity^ ■on account of Ms laches. It is certainly true that where a party, without any excuse for his delay, permits more than twenty years to elapse after a sale is •had of his property for delinquent taxes, before •attacking the same, he will be required to adduce satisfactory evidence in support of his contention that •no assessment was made before a court of equity will •grant him relief. All the evidence he produces, as :we have stated, is that the assessor’s books for the years 1869 and 1870 show no valuation of the land by •the assessor. In all other particulars the assessment •is conceded to be valid. And we think a strong presumption arises that the other officers, whose duty it •was to correct this omission or mistake, did their duty. .We are satisfied that the decree is correct and it is affirmed.