Hotz v. Page County

Appellee's asserted right of redemption is based upon various alleged defects and omissions in the proceedings to terminate such right. Of said propositions we need consider but one.

[1] I. Section 7283, Code of Iowa, 1939, provides that the county treasurer, upon the filing with him of the affidavit of service of notice of the expiration of right of redemption from tax sale, shall forthwith report the same in writing to the auditor, who shall enter it on the sale book against the proper tract of real estate. In this case the treasurer made no such report to the auditor and it was not entered on the sale book in the auditor's office.

Ashenfelter v. Seiling, 141 Iowa 512, 516, 517, 119 N.W. 984,985, states:

"The purpose of this latter proposition is quite apparent. The auditor is the officer, and the only officer, authorized to permit or receive redemptions made from tax sales. It is he to whom the landowner desiring to redeem must apply to ascertain the amount required to redeem, and to his records he must look to determine whether the apparent right to redeem exists. It is therefore a matter of vital importance that the officer upon whom this power and duty are imposed shall know, and that his books shall disclose, at what time the period of redemption will expire. * * *

"It is, as we have already seen, the duty of the treasurer on receiving such proof to act at once, forthwith, in order that the auditor shall be promptly advised of the time when the right of redemption will expire. This is as much a part of the treasurer's duty as it is to receive and make entry of the proof of service on the proper owner. It is not merely directory; it is mandatory. [Italics supplied.]

"The right and authority of the State to seize and sell valuable property for the payment of a relatively small tax, while necessary, is often so oppressive in its results that we are bound to construe the right of redemption with all reasonable liberality, and hold the person who seeks to foreclose it to very substantial compliance with all of the provisions which have been enacted for its protection."

Geil v. Babb, 214 Iowa 263, 267, 242 N.W. 34, 36, states:

"It follows, therefore, that if the required entry is not made on the auditor's sale book, the right to redeem from the tax sale is not cut off."

In Huiskamp v. Breen, 220 Iowa 29, 32, 260 N.W. 70, 72, such entries in the auditor's books were not made in ink as required by Code section 7276.1. On this account the court held the right of redemption was not cut off, stating:

"The statute requiring that the entry be made in ink is not directory, hence, not being directory, it is mandatory that the record be kept as provided by the statute. In Geil v. Babb, the effect of this case is that these requirements of the statute are jurisdictional in order for the treasurer to issue a deed."

Appellant contends subsection 3 of Code section 7288 makes the tax deed conclusive evidence that the treasurer made the report to the auditor and that it was entered on the auditor's sale book. Her counsel suggest the three decisions above cited are not in point because it does not appear that the tax deeds were introduced in evidence in said cases or that Code section 7288 was considered. An examination of the original abstracts and briefs in those cases discloses the tax deed was in evidence in each case and that in at least one of them (Geil v. Babb, supra) Code section 7288 was directly brought to the attention of the court.

Appellant argues that under McCready v. Sexton Son, 29 Iowa 356, 4 Am. Rep. 214, and like cases, the legislature had the power to make the tax deed conclusive evidence of said matters because they are nonessential or merely directory. The answer to this argument is that the provisions here involved are not "merely directory." The cases from which we have quoted hold the requirements of Code sections 7283 and 7276.1 are not directory but mandatory and are jurisdictional in order for the treasurer to issue a deed. We are not disposed to overrule these decisions. Accordingly, we concur in the holding of the trial court that the right of redemption from the tax sale was not cut off.

[2] II. In his petition, and also during the trial, appellee tendered the amount necessary to make redemption from said tax sale. This was a sufficient tender of payment in this equitable action. Fidelity Inv. Co. v. White, 208 Iowa 519, 526,223 N.W. 884, 225 N.W. 868; Jordan v. Beeson, 225 Iowa 460, 466,280 N.W. 625.

[3] III. The real estate is a residential property. Page County secured the tax deed in 1937 and conveyed the property to appellee Read, who conveyed it to appellees Rydberg. February 1, 1938, the Rydbergs contracted to sell it to appellant. Appellant has paid the Rydbergs interest amounting to $350, and has also paid certain taxes and insurance on the property. She was in possession of the property prior to the date of the tax deed and has continued to occupy it. No rent has been paid appellee since the tax deed issued.

In the accounting appellant was charged $25 per month for the use of the premises from the date of the tax deed to the date of the decree, and was credited with the foregoing payments of taxes, interest, and insurance. The resulting balance of $1,127.32 due from appellant to appellee, administrator of the estate of Lulu Suter, was ordered credited on a claim growing out of another matter which appellant had previously established against said estate. The amount appellee was required to pay the Rydbergs to make redemption was reduced by $350 to $776.40 on account of the payments received by them from appellant.

Appellant contends this $350 item should not have been included in the accounting between the parties, that appellee should have been required to pay the Rydbergs $1,126.40 to redeem, and that the Rydbergs should have been required to repay the $350 to appellant.

Appellant's total disbursements in the transaction consisted of payments of taxes and insurance and this $350. Though she owed more than this for rent, she asks that appellee be required to pay an additional $350 for her benefit (thereby increasing her debt in this matter) because of appellee's indebtedness to her in an entirely different matter.

This is an equitable action under Code section 7278, which provides that all persons claiming an interest in the land shall be made defendants and the court shall determine the rights, claims, and interests of the several parties. It is not the purpose of such actions to settle and adjust all accounts between the parties. Nor should the right of redemption be conditioned upon the payment of obligations other than those properly involved in the action.

It is our conclusion that the trial court rightly included in the accounting the $350 paid the Rydbergs by appellant on her contract to purchase the interest claimed by her in the property involved in such accounting, and the decree correctly adjudged that the amount appellee was required to pay the Rydbergs to make redemption should be reduced accordingly. — Affirmed.

MANTZ, C.J., and HALE, BLISS, SMITH, GARFIELD, MILLER, and WENNERSTRUM, JJ., concur.

MULRONEY, J., dissents.