The owner has until the next day and the time should be so stated in the notice.1 (2) Amount Due.-Where the statute requires that the amount of the redemption money be stated in the notice, a disregard of this requirement, or a mistake in the amount, renders the notice bad.2 e. PUBLICATION.—Provision is sometimes made by statute for notice by publication.3 If notice can be given personally, not September 3d, 1881, it was held that full three years were given for redemption by such notice. Ireland v. George, 41 Kan. 751; Hicks v. Nelson, 45 Kan. 47. If the sale is made September 7th, 1880, a notice saying that the time will expire September 8th, 1883. is sufficient where three years are given in which to redeem. Torrington v. Rickershauser, 41 Kan. 4S6. Under a statute requiring that the notice shall specify the expiration of the redemption period, a notice which stated" that the time for redemption from said sale will expire sixty days after service of this notice," was held sufficient. Parker v. Branch, 42 Minn. 155. Insufficient Notice.-A notice stating that the land will be deeded "on and after September 5th, 1879, or within three years from the day of sale," is sufficient. Blackistone v. Sherwood, 31 Kan. 35. A notice stating that the time will expire October 26th, when really November 6th is the correct date, is fatally defective. Gage v. Bailey, 100 Ill. 530. Where city lots were sold at a tax sale on September 16th, 1875, for the taxes of 1874, and the notice stated that they were sold at a tax sale "commenced September 7th, and closed September 16th, 1875, and that unless such lots are redeemed before the days limited therefor, they will be conveyed to the purchaser," it was held that the notice was insufficient. Jackson v. Challiss, 41 Kan. 247: A notice which stated the day on which the right of redemption would expire to be the same as that on which it is alleged the sale was made, was held void. Wilson v. McKenna, 52 Ill. 43. 1. Gage v. Davis, 129 Ill. 236; 16 Am. St. Rep. 260; Hill v. Timmermeyer, 36 Kan. 252. the right to redeem. Reed v. Lyon, 96 Cal. 501. In Roberts v. Western Land Assoc., 43 Minn. 3, an error in computing interest, which made a difference of three cents only, was said to be too trifling to invalidate the notice. In Watkins v. Inge, 24 Kan. 612, the notice stated the amount erroneously; but no redemption was attempted, no offer was made to redeem, and in the circumstances the notice misled no one and worked no injustice. It was held that the error was unimportant. 3. In Frew v. Taylor, 106 Ill. 159, notice by publication was held good, it appearing that there was no occupant within three months before the time of redemption, and that the person in whose name the tax was assessed, could not be found in the county. An affidavit made more than five months before the expiration of the time for redemption, that no one was in possession of the premises, and that they were vacant and unoccupied at that time, is not sufficient to authorize notice to the owner by publication in a newspaper. Gage v. Bailey, 100 Ill. 530. 2. A notice stating the amount slightly in excess (one dollar) of that in fact due, has been held, under the California statute, not to comply with the statute and therefore not to bar Under the Illinois statute, diligent inquiry must be made before publication. Burton v. Perry (Ill. 1893), 34 N. E. Rep. 60. In Minnesota, proof of publication of notice of the expiration of the time for redemption is inadmissible without first proving that it is addressed to the party in whose name the land was assessed, and that it had been delivered to the sheriff for service, and that he had made return thereon to the county auditor. Mueller v. Jackson, 39 Minn. 431. See also, as to service by publication under the Minnesota statute, Reimer v. Newall, 47 Minn. 237. The fact of non-residence must appear in some way, to authorize notice by publication. Sweeley v. Van Steenburg, 69 Iowa 696. withstanding non-residence, such a notice is generally good, although notice by publication might be equally so.1 If the publication is to be in a newspaper printed in the county, one published there answers this description, although actually printed elsewhere.2 If it is to be in the nearest newspaper to the county, the one published in the town nearest the county line is the proper one. Such statutes generally require that the notice be published a certain number of times at stated intervals.4 Unless their provisions are complied with, the conveyance to the purchaser at the tax sale is void. Provisions sometimes exist requiring notice by posting, and similar results follow a failure to comply with them.6 f. AFFIDAVIT OF SERVICE AND PUBLICATION.-Statutes provide sometimes for an affidavit of service or publication, to be filed with the officer whose duty it is to execute the tax deed. 1. Baker v. Crabb, 73 Iowa 416. In Seymour v. Harrison (Iowa, 1892), 52 N. W. Rep. 114, it was held that a personal service, though made in another state, superseded the necessity for publication. 2. Nycum v. Raymond, 73 Iowa 224. 3. Weer v. Hahn, 15 Ill. 299. 4. In Wisconsin, where the statute requires the publication "at least six months" before the expiration of the period allowed for redemption, it was held that a publication sixteen months before, was within the discretion of the clerk. Hoffman v. Clark County, 61 Wis. 5. The requirements of the Nebraska statute for publication in a newspaper at least three times, the first publication not more than five months and the last not less than three before the end of the redemption period, are mandatory. State v. Gayhart, 34 Neb. 192. Where the statute required that an advertisement be published at least six months before the expiration of two years from the sale, at least twice a week for six weeks successively, it was held that the six weeks must be completed six months before the expiration of the two years. Doughty v. Hope, 3 Den. (N. Y.) 594; 1 N. Y. 79. To same effect is Bennett v. New York, 1 Sandf. (N. Y.) 485. 5. Bunner v. Eastman, 50 Barb. (N. Y.) 639; Westbrook v. Willey, 47 N. Y.457. But it has been held that the provision requiring land to be advertised six months before the expiration of the time of redemption is directory only, and that failure to comply does not 25 C. of L.-28 affect the purchaser's title. Wright v. Sperry, 21 Wis. 331. 6. As for example, in Kansas, Stout v. Coates, 35 Kan. 382. Where the affidavit of the county treasurer attached to the redemption notices in his office, recites that the notices were posted at four different places in his county, one of which was in his office, it must be assumed in the absence of other testimony that the notices were posted in public places and that one of them was posted in a conspicuous place in his office. Washington v. Hosp, 43 Kan. 324; 19 Am. St. Rep. 141. The notice by posting is complete when the notices are put upon the post. Washington v. Hosp, 43 Kan. 324; 19 Am. St. Rep. 141. The af 7. See the various statutes. fidavit must be signed. Lynn v. Morse, 76 Iowa 665. It is insufficient if signed by one merely as "agent," without stating for whom he acted. Taylor v. Wright, 121 Ill. 455. The purchaser of land at a tax sale conveyed it by quit-claim deed without either assigning the certificate of purchase, or making proof of the service of notice of the expiration of the period for redemption. It was held that he might still make proof of the service of notice; because, if still the lawful holder of the certificate, he was authorized to make such proof by section 894, Iowa Code, and if not such holder, his grantee would be presumed to have authorized his act, which was for the grantee's benefit. Babcock v. Bonebrake, 77 Iowa 710. 433 Such affidavit is then a prerequisite to the validity of the tax deed.1 Under these statutes the affidavit cannot be made by the proprietor or publisher of the newspaper.2 If so made, however, the defect is cured by the lapse of the statutory period within which the action to set the deed aside may be brought.3 The affidavit must state everything essential.4 Omissions in Where the affidavit of service of notice recited that the affiant was agent of the holder of the tax certificate, and the owner of the land accepted service by him, it was held that there was sufficient proof of his authority. Baker v. Crabb, 73 Iowa 412. The mere request of the purchaser at a tax sale made to the foreman of a newspaper in which notice of the expiration of the time for redemption is published, to make affidavit to the fact of such publication and return it to the treasurer, does not constitute such foreman an agent of the purchaser within the meaning of section 894 of the Iowa Code. Chambers v. Haddock, 64 Iowa 556. If the affidavit must be recorded, this is done when it is left with the proper officer. His failure to spread it upon his books does not prejudice the purchaser's right. The original affidavit, or if lost, a copy duly proved, is admissible in evidence. Baker v. Crabb, 73 Iowa 412. Under the Iowa statute, the affidavit need not recite all the facts required by the statute, nor have attached to it a copy of the notice. Knudson v. Litchfield (Iowa, 1893), 54 N. W. Rep. 199. 1. American Missionary Assoc. v. Smith, 59 Iowa 704; Ellsworth v. Cordrey, 63 Iowa 675; Smith v. Heath, 8o Iowa 231; Wisner v. Chamberlin, 117 Ill. 568; Williams v. Underhill, 58 Ill. 137; Davis v. Gossnell, 113 Ill. 121; Gage v. Hervey, 111 Ill. 305; Gage v. Mayer, 117 Ill. 632; Lockwood v. Gehlert, 53 Hun (N. Y.) 15. See also Rowland v. Brown, 75 Iowa 679. The omission to file with the sheriff a sufficient affidavit, as required by statute, before taking a sheriff's deed for land sold for taxes, will not prevent such deed from being claim and color of title required in good faith under the Illinois Limitation Act of 1839. Whitney v. Stevens, 89 Ill. 53. But where no affidavit of notice can be found in the county clerk's office, a presumption is raised that the notice was not given, and it becomes the duty of a party claiming under a tax deed to prove that the notice was actually given, in order to constitute himself a holder in good faith. Dalton v. Lucas, 63 Ill. 337. 2. American Missionary Assoc. v. Smith, 59 Iowa 704; Adams v. Griffin, 66 Iowa 125; Sweeley v. Van Steenburg, 69 Iowa 696. Compare Stout v. Coates, 35 Kan. 382. And such defect is not cured by the additional affidavit of the holder of the certificate that publication was made for three consecutive weeks, without stating when the publication was made. Such proof of notice does not limit the time within which the owner may redeem. Ellsworth v. Cordrey, 63 Iowa 675. It is sufficient if the affidavit of the holder of the certificate of purchase refers to the annexed affidavit of the publisher, that the printed notice pasted upon the latter was published as required by law. Smith v. Heath, So Iowa 231; Stull v. Moore, 70 Iowa 149. In Kansas, where the printer, who published a tax list and notice, makes affidavit thereof as prescribed by the statute, and such affidavit is filed with. the county clerk to be preserved by him, the failure or omission of the county treasurer to make another affidavit of the printing of the list and notice in accordance with the statute, is only an irregularity, and will not affect fatally the tax proceedings. Stout v. Coates, 35 Kan. 382. An affidavit of service on one "as owner," does not comply with the Illinois statute which requires an affidavit of service of notice on "the owner." Stillwell v. Brammell, 124 Ill. 338. 3. Trulock v. Bentley, 67 Iowa 602. 4. Rowland v. Brown, 75 Iowa 679; Davis v. Gossnell, 113 Ill 121; Price v. England, 109 Ill. 394; Gage v. Hervey, 111 Ill. 305; Stillwell v. Brammell, 124 Ill. 338; Caulkins v. Chamberlain, 37 Hun (N. Y.) 163; Ellsworth v. Van Ort, 67 Iowa 222. It must show service upon the proper person. Brickey v. English, 129 Ill. 626. It need not state where the service was made, this being immaterial. the affidavit cannot be cured nor can defects be supplied by parol testimony.1 13. Evidence. Tender and payment are matters in pais, which may always be shown by parol evidence in order to defeat a tax title.2 The failure of the officer to file the affidavit of the facts on which the right of redemption is based, will not defeat the redemption; the facts may be proved by other evidence.3 Where the law provides that a certificate of redemption shall issue, such certificate is evidence of the fact of payment,4 but not of the right to redeem, or the age of the redemptioner, or other facts; neither is it a muniment of title in itself. Likewise the books of redemptions are competent evidence, and verified copies of their entries are admissible.8 The receipt of the proper officer is prima facie evidence of redemption;9 no proof of title need be deduced before the officer to whom redemption money is to be paid. It is enough to show some connection with the title, past or present, by deed, descent, contract, or possession.10 14. Remedies. While it is true that redemption need not be sought and cannot be had in a court of equity, in the absence of a statute giving it jurisdiction,11 it is nevertheless the case that the fact of redemption may be of importance as a matter of claim or defense in suits in equity. The statute sometimes grants power to the court to entertain jurisdiction of a bill to redeem.12 If such a suit is allowed, it cannot be the means of determining An affidavit which failed to state who was in possession when the notice was served, has been held to be fatally defective. Wisner v. Chamberlin, 117 Ill. 568. An affidavit "that this affiant served, or caused to be served, written or printed, or partly written and partly printed, notices is fatally defective. Brickey v. English, 129 III. 646. 1. Gage v. Mayer, 117 Ill. 632. 2. Cooper v. Shepardson, 51 Cal. 298. A sufficient foundation for the proof must be laid in the plea for redemption, which must set out facts sufficient to satisfy the statute prescribing the mode of redemption. People v. Ryan, 116 Ill. 73. 3. Chapin v. Curtenius, 15 Ill. 427. 4. Henricksen v. Hodgen, 67 Ill. 179; Byington . Rider, 9 Iowa 569. See also Rice v. Nelson, 27 Iowa 148. It is admissible, however, only when made as required by law. Shelton v. Dunn, 6 Kan. 128. 5. Henricksen v. Hodgen, 67 Ill. 179. The county auditor's certificate that the period allowed for redemption has expired, is not of itself sufficient evidence that the notice has been duly given. Jewell v. Truhn, 38 Minn. 433. 6. Boykin v. Smith, 65 Ala. 294. 7. Gage v. Parker, 103 Ill. 528; Huzzard v. Trego, 35 Pa. St. 9. 8. Johns v. State, 55 Md. 350. 9. Taylor v. Steele, 1 A. K. Marsh. (Ky.) 316. The stub of the redemption certificate, kept in the auditor's office, is a "record."Ellsworth v.Low, 62 Iowa 178. 10. Masterson v. Beasley, 3 Ohio 301. The officer should receive the money of any one seeking in apparent good faith to redeem, leaving the question of his right for further determination. Cummings v. Wilson, 59 Iowa 14. As to the presumption of notice arising from possession of the deed, see Fuller v. Armstrong, 53 Iowa 683; Chambero v. Haddock, 64 Iowa 556; Reed v. Thompson, 56 Iowa 455; Ellsworth v. Low, 62 Iowa 178; Baker v. Crabb, 73 Iowa 412. Where, in an action to redeem, both parties claim title from a common source, the plaintiff need not go behind such source. McKee v. Spiro, 107 Mo. 452. 11. Mitchell (Mass.) 101. 12. Craig v. Flanagin, 21 Ark. 319; Serrin v. Brush, 74 Iowa 489; Culver υ. Green, ΙΟ Met. the validity of the tax title; that is assumed. If it be brought by a part owner, it need not describe his interest.2 Such a bill does not lie merely to redeem land from the lien of a tax paid by another part owner.3 The petitioner must "do equity;" he must be ready to pay all past dues, whether outlawed or not.1 The decree will be that the purchaser quit-claim to the owner.5 If tender has been properly made and refused, an injunction will be granted to restrain the execution of the tax deed," or the public officer can be compelled to accept the money and grant the redemption by mandamus. If a void tax deed is issued, the claim of the purchaser may be removed as a cloud upon the owner's title, or it may be treated as a nullity and the land recovered from the tax purchaser in an action of ejectment.9 A law requiring payment of the purchase-money and interest, as a condition precedent to questioning the validity of a tax deed, is unconstitutional.10 The statutes of many states provide that the right of redemption may be foreclosed.11 Their provisions must be strictly followed. 12 Only those made parties to a bill to foreclose are bound by the decree.13 An action to foreclose cannot be maintained after redemption, for the purpose of securing costs. 14 If a tax sale is void, the owner cannot be compelled to v. Watson, 28 N. J. Eq. 548. Such a bill must be brought promptly. Fuller v. Butler, 72 Iowa 729. Under the Ohio Act of March 3d, 1831, an action to redeem need name no defendant, and no service was necessary. It was essentially a proceeding in rem. Plumb v. Robinson, 13 Ohio St. 298. 1. Chace v. Durfee, 16 R. I. 248. But an action to redeem under the Minnesota statute, is an action to test the validity of title to land within the statute providing compensation for improvements to occupying claimants in good faith. Goodrich v. Florer, 27 Minn. 97. In Massachusetts, an action to redeem lies only after a valid sale. Smith v. Smith, 150 Mass. 73. Not so in Iowa. Callanan v. Lewis, 79 Iowa 452. 2. Rich v. Palmer, 6 Oregon 339. 3. Chace v. Durfee, 16 R. I. 248. 4. Barke v. Early, 72 Iowa 273. A bill to redeem, setting up the respective interests of the parties and praying that the petitioner be allowed to redeem as provided by law, implies a tender, and where there is no objection to its terms or to the fact that no tender was actually made, title is revested in the owner, and the estate of the purchaser terminated. The purchaser is thereafter liable for rents and profits. Bender v. Bean, 52 Ark. 132. 5. Simonds v. Towne, 4 Gray (Mass.) 603. 6. Koon v. Snodgrass, 18 W. Va. 320. 7. State v. Haughey, 5 Kan. 625; People v. Treasurer of Detroit, 8 Mich. 14; 77 Am. Dec. 433; People v. Registrar of Arrears, 114 N. Y. 19. See also MANDAMUS, vol. 14, P. 151. 8. Smith v. Gage, 11 Biss. (U. S.) 217; Reed v. Tyler, 56 Ill. 288; Lynn v. Morse, 76 Iowa 665; Smith v. Smith, 150 Mass. 73. For a form in such a suit under the codes of civil procedure, see Maxwell on Code Pleading, pp. 676, 677. 9. Cooper v. Shepardson, 51 Cal. 298. 10. Reed v. Tyler, 56 Ill. 288. 11. Atkins v. Paige, 50 Iowa 666. 12. Peet v. O'Brien, 5 Neb. 360; Dayton v. Relf, 34 Wis. 86; Durbin v. Platto, 47 Wis. 484; Dentler v. State, 4 Blackf. (Ind.) 258; Gaylor v. Scarff, 6 Iowa 179; McGahan v. Carr, 6 Iowa 330; 71 Am. Dec. 421; Byington v. Buckwalter, 7 Iowa 512; 74 Am. Dec. 279; Abell v. Cross, 17 Iowa 171; Carter v. Hadley, 59 Miss. 130; McNish v. Perrine, 14 Neb. 582. 13. Coe v. Manseau, 62 Wis. 81. Thus if a cestui que trust is not made a party he may afterwards redeem. Corrigan v. Bell, 73 Mo. 53. 14. Two Rivers Mfg. Co. v. Beyer, 74 Wis. 210; 17 Am. Št. Rep. 131. |