Citation Numbers: 182 Iowa 835
Judges: Evans, Gaynor, Ladd, Salinger
Filed Date: 9/26/1917
Status: Precedential
Modified Date: 7/24/2022
Originally, this land was swamp land, and passed from the United States to the state of Iowa under the Swamp Land Grant of September 28, 1850. It does not appear that the title to the land in controversy ever passed from the state of Iowa to Fremont County, except as hereinafter indicated. However, the record discloses that, in 1873, the east half of the northwest quarter and the west half of the northeast quarter were sold for the taxes of 1869, and a tax deed issued by the county treasurer of said county to James S. Easley. In 1878, Easley quitclaimed the same land to Fremont County. Thereafter, in 1896, Mary E. McDonald received a quitclaim deed from one Hurlbut to the northeast quarter. Hurlbut does not appear to have had any title. Thereafter, on November 11, 1895, Fremont County made a quitclaim deed of the west half of the northeast quarter and the northwest quarter of said section to Mary E. McDonald. Mary E. McDonald and her husband, on May 26, 1896, mortgaged the west half of the northeast quarter of this land to one Hines. Hines assigned this mort
On the 17th day of March, 1911, the legislature passed the following act (see Chapter 232, Acts of the Thirty-fourth General Assembly) :
“Whereas, a part of Buckingham Lake was located on a portion of the west half of the northeast quarter, and the northwest quarter of Section 2, Township 70 North, Bange 43 West of the 5th P. M., in Fremont County, Iowa, and
“Whereas, Frank M. Kephart and his grantors have been in possession of all of said government sub-division for more than thirty (30) years, and have by drains, ditches and embankments reclaimed said lands at great expense, and have regularly paid state and county taxes on said1 land, and have paid large sums for the drainage of the same, and
“Whereas, the county of Fremont on the 11th day of November, 1895, conveyed said premises by deed to Mary E.*839 McDonald, through its board of supervisors, therefore:
“Be it enacted by the General Assembly of the Gtate of Iowa:
“Section 1. The certain deed executed by Fremont County, Iowa, and its board of supervisors on the 13.th day of November, 3895, and recorded on the 11th day of Novem.ber, 1895, in Book 12, at page 275, of the Deed Becords of Fremont County, Iowa, conveying the west half of the northeast quarter and the northwest quarter of Section 2; Township 70 North, Bange 43 West of the 5th P. M., in Fremont County, .Iowa, to Mary E. McDonald, is hereby declared valid, and to pass to the said Mary E. McDonald, her heirs, executors or assigns, all the rights and title and interest of the state of Iowa in and to said lands, as well as the interest of Fremont County, Iowa.”
So far as is material to the consideration of this case, the record discloses that this land was swamp land, and passed from United States to the state of Iowa under the Swamp Land Grant of September 28, 1850. On November 11, 1895, Fremont County made a quitclaim deed of the west half of the northeast quarter and northwest quarter of said section to Mary E. McDonald. Mary E. McDonald and her husband mortgaged the west half of the northeast quarter of this .land to one Hines. This mortgage was foreclosed, and the land sold under special execution to one Schoentgen, to whom subsequently a sheriff’s deed was issued, January 14, 1899. In 1902, Schoentgen conveyed this west half of the northeast quarter to the defendants. In 1911, the legalizing act was passed, hereinbefore set out. It is under the foreclosure of this mortgage from McDonald to Hines, supplemented by this legalizing act, that the defendants base their title.
The plaintiff’s paper title dates from this tax deed from Fremont County to Loose, on the 25th day of June, 1900.
Since the execution of the tax deed to Loose, the land has been in the continuous, open, adverse, and notorious possession of Loose’s grantees. Loose’s grantees have not only been in the open possession, but claim the right to possess u'jnder the Loose tax deed. The defendant never has been in possession, nor have any of his grantors since McDonald.
Assuming, for the purposes of this case, that the legalizing, act did not validate the title conveyed under the Loose tax deed, and assuming that it did validate the title in Mrs. McDonald under her deed from the county, and that, as a legal sequence, it follows that it validated the mortgage given by Mrs. McDonald, under which these defendants claim, yet it is apparent from this record that the grantees of Loose under the tax deed have been in adverse possession of this land, claiming a right to take under this tax deed,— void though it may be, — ever since its execution, in 1900.
As said in Chicago, R. I. & P. R. Co. v. Allfree, 64 Iowa 500, 504:
“The defendant and his grantors claim title under the tax deeds. They were invalid, void, on the ground that the officers of the county had no authority to convey the land, for the reason that it was not taxable. But their invalidity for this reason does not prevent them from being regarded as a foundation for a pretense, show, appearance, color of title. Whatever may be the source of the invalidity of a deed, if it purports to convey land, and ‘in form passes what purports to be the title, it gives color of title.’ ”
The same was held in Colvin v. McCune, 39 Iowa 502.
Therefore it follows that plaintiff did have color of title, though perhaps uo valid title. This color of title, followed by adverse possession for the statutory period, is sufficient on which to base a claim of adverse possession against any citizen claiming title to the land adversely. Concede the tax deed was void, concede possession cannot be adverse to the state, yet we find the state urging no title to this land. The state has deliberately, and by a solemn act of its legislature, legalized the act of Fremont County by which it undertook to convey title to this land to Mrs. McDonald, and in the act declared that that deed should be sufficient to pass to Mary E. McDonald, not only the rights of Fremont County in the land, but all the rights, title, and interest in the state of Towa. It therefore was clearly retroactive. It clearly made that deed, in and of itself, a conveyance of all the title of the state in the land, as of the date of the execution of the deed. This act, so. construed, impairs no vested rights, nor does it disturb any
This court has said that legislation operating retrospectively to render binding and effective contracts before invalid is not in conflict with the Constitution, nor does it impair the obligation of contracts, where it does not attempt to disturb vested rights. See Tilton v. Swift & Co., 40 Iowa 78; State v. Squires, 26 Iowa 340; Burgett v. Norris, 25 Ohio St 308; Chicago, R. I. & P. R. Co. v. Independent Dist. of Avoca, 99 Iowa 556.
The court (below found for the plaintiff on his claim of. adverse possession. We think' the court in this was clearly right.
Other matters urged as a basis for reversal relate to the action of the court in making up the issues. In the view we take of this case, we do not find these errors prejudicial to any rights of the defendant. Under the issues tendered, all rights were necessarily involved, and fairly presented and disposed of. We see no ground for interfering with the judgment of the court below, and the cause is —Affirmed.