whole tract fails, not that of the part occupied only. The occupancy must be intentional. Mere accidental encroachments do not constitute occupancy.2 The question whether or not land was occupied or in possession is for the jury. The fact that the occupant is unknown to the purchaser will not dispense with notice, nor will the fact that the one in possession had in fact no interest in the land.5 (4) The Person in Whose Name Assessed. If the statute prescribes notice to the person in whose name the land was assessed, it must be given, even though such person has no interest in it. The notice must be given to the person assessed at the time of notice. Where the land is taxed in the name of the purchaser at the tax sale,notice has been held necessary.8 So if assessed in the name of the purchaser's wife, it must be given.9 Notice to one member of a firm, where land is assessed to the firm, is insufficient.10 c. GENERAL REQUISITES.-The notice must be precise and 1. Comstock v. Beardsley, 15 Wend. (N. Y.) 348; Bush v. Davison, 16 Wend. (N. Y.) 556; Leland v. Bennett, 5 Hill (N. Y.) 286. 2. Smith v. Sanger, 4 N. Y. 577. 3. Smith v. Sanger, 4 N. Y. 577; Jones . Chamberlain, 109 N. Y. 100. 4. If notice is dispensed with if land be vacant, an affidavit stating that there was no person in actual possession or occupancy," except as hereinafter stated," and then saying that the lands were fenced in and in the possession of persons unknown, does not bring it within the dispensation. Combs v. Goff, 127 Ill. 431. 5. Clifton Heights Land Co. v. Randell, 82 Iowa 89. 6. In Illinois, where by statute, notice must be served on the person assessed, the notice must be given, even though such person had no interest in the land and claims none. If this is not done the deed will be void, even though notice by publication is given. Barnard 7. Hoyt, 63 Ill. 341. Under a law requiring notice to the person in whose name the land is assessed, a notice to the owner, if not that person, is inoperative. Hillyer v. Farneman, 65 Iowa 227. See, as to notice under the Iowa statute, where the land is taxed to an unknown owner, White v. Smith, 68 Iowa 313; Lawrence v. Hornick, 81 Iowa 193. 7. Heaton v. Knight, 63 Iowa 686; Heaton v. Knight, 65 Iowa 434; Adams v. Snow, 65 Iowa 435. Where there has been lawful service of notice to redeem from a tax sale, the fact that when proof of service is made, the land is assessed to another, is immaterial. Rice v. Bates, 68 Iowa 393. If notice must by statute be given to the person in whose name the property is assessed, it is not invalidated by the fact that it contains also the name of the person to whom it was assessed when tax was levied. Sperry v. Goodwin, 44 Minn. 207. 8. Wakefield v. Day, 41 Minn. 344. But see Lamoreux v. Huntley, 68 Wis. 24. If the land is assessed to an unknown owner, but the holder of the tax certificate paid the taxes, and the treasurer entered his name as owner, no notice to himself need be given. Knight v. Campbell, 76 Iowa 730; Irwin v. Dakin, 79 Iowa 72; Brown v. Pool, 81 Iowa 457. 9. Western Land Assoc. v. McComber, 41 Minn. 20. Under a statute providing that notice shall be served upon the person in whose name land is taxed, it was held that when land is taxed to an unknown owner and the name of the holder of the certificate is first entered on the tax list as owner, no notice is necesṣary. Irwin v. Burdick, 79 Iowa 69. 10. Gage v. Reid, 118 Ill. 35; Hughes v. Carne, 135 Ill. 519. full. It is better that it should be in writing, although it may be given orally, unless provided otherwise by law. If it fails to state whether the land was sold for a tax or a special assessment it is defective.3 The land must be described with sufficient fullness to identify it. The name of the owner should be given, although its omission has been held not a fatal defect. More than one tract of land may be included in the same notice.6 d. CONTENTS OF NOTICE (1) The Expiration of the Time to Redeem. The notice must state clearly and directly when the period allowed for redemption expires. 1. Broughton v. Journeay, 51 Pa. St. 31; Long v. Wolf, 25 Kan. 522; Blackistone v. Sherwood, 31 Kan. 35; Garrick v. Chamberlin, 97 Ill. 620; Gage v. Davis, 129 Ill. 236; 16 Am. St. Rep. 260; Griffith v. Utley, 76 Iowa 292; Robert v. Western Land Assoc., 43 Minn. 3; Landregan v. Peppin, 86 Cal. 122; Poindexter v. Doolittle, 54 Iowa 52. For a notice sufficient to comply with the statute requiring that the notice specify a "day certain," on which to make the redemption, see Hennesey v. Volkening, 22 N. Y. Supp. 528. A notice which fails to state for what year the land was taxed and to whom it was taxed, is insufficient as a foundation for a tax deed. Taylor v. Wright, 121 Ill. 455; Brophy v. Harding, 137 Ill. 621; Smith v. Buhler, 121 N. Y. 213. If the published list gives the year at the head, and the owner after each tract, it is sufficient. Sperry v. Goodwin, 44 Minn. 207. 2. In Broughton v. Journeay, 51 Pa. St. 31, it was held that although written notice might not be essential, the evidence of its service should be preserved in the archives of the treasurer's office as a muniment of title. And that where the witnesses differed as to the fact of notice and the treasurer could not fix the time within less than three months, the proof of notice was insufficient to go to the jury. 3. Gage v. Waterman, 121 Ill. 115; Stillwell v. Brammell, 124 Ill. 338; Gage v. DuPuy, 137 Ill. 652; Gage v. Webb, 141 Ill. 533. 4. If the number of the township in which the lands lie is wrongly given, the defect is fatal. Thompson v. Burhans, 61 N. Y. 53. If the description is the same as on the tax records and is by reference to a recorded plot of a city, town or subdivison, it is sufficient, even though the county and state are not given. Sperry v. Goodwin, 44 Minn. 207. An erroneous state ment of the quantity of land will be treated as surplusage, and will not invalidate the notice. Rowland v. Brown, 75 Iowa 679. A description as "W. side, N. 1⁄2 S. E. N. W. 10 acres sec. 8 T. 23 R. 10," is sufficiently certain. Taylor V. Wright, 121 IIl. 455. A description omitted to mention the state, county, or city. The land was described as "lot 8, block 4, of Penniman's Addition." The notice was issued by the auditor of H. county. The tract referred to was commonly known as Penniman's Addition, although platted as "Penniman's Addition to Minneapolis." It was held that the description was sufficient to make the notice good. Reimer v. Newell, 47 Minn. 237. 5. Shoup v. Central Branch, etc., R. Co., 24 Kan. 547. 6. Sperry v. Goodwin, 44 Minn. 207; Drake . Ogden, 128 Ill. 603. 7. Wilson v. McKenna, 52 Ill. 43; Barnard v. Hoyt, 63 Ill. 341; Wisner v. Chamberlin, 117 Ill. 569; Gage v. Bailey, 100 Ill. 530; Gage v. Stewart, 127 III. 207; 11 Am. St. Rep. 116; Gage v. Davis, 127 Ill. 236; 16 Am. St. Rep. 260; English v. Williamson, 34 Kan. 212; Torrington v. Rickershauser, 41 Kan. 486; Landregan v. Peppin, 36 Cal. 122; Simonton v. Hays, 32 Hun (N. Y.) 286; Hill v. Timmermeyer, 36 Kan. 252. A mistake of one day in stating the time for redemption in a notice of purchase at a tax sale will invalidate the tax title. Benefield v. Albert, 132 Ill. 665. But see Hicks v. Nelson, 45 Kan. 51, which held that a notice is not invalidated by the fact that the officer gave by mistake a day too much for redemption. " 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. 486. 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. 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 the right to redeem. 96 Cal. 501. Reed v. Lyon, 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. 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. 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.3 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 7. Crabb, 73 Iowa 416. In Seymour . 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 . Hahn, 15 Ill. 299. で。 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 . 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. affect the purchaser's title. Wright v. Sperry, 21 Wis. 331. 6. As for example, in Kansas, Stout 7. 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. 7. See the various statutes. The affidavit 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, 80 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, 80 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. as An affidavit of service on one 66 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, III 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. |