FEDERAL REPORTER.
ferred to the 'insolvency court, in which defendant's insolvency proceedings were then pending, and cumulating that suit with those proceedings, was not a participation in the insolvency proceedings in such a manner as constituted an asSen;t{ ,:frof. Parsons (2 Pars. Cont. 536) states the test to be "whether the creditOr has assented to the relief or or py- some equivalent act, as becomdischarge of the debtQr ing a party to the process against him under the law, 'taking a dividend and the like." In this case the question is, "Did the creditor do anything, or derive ' by, virt,ue .of.the' . ,I thmk he dId not. He followed up hIS nghts precIsely as he could have done without any insolvent law. He proved no claim. He received no dividend. His ip no respect changed from what it would have been if there had been no insolvent proceedings. He cannot be held to have impliedly assented to defendant's discharge. Let the exception beoverraled. '.. , '
SLYFIELDl1., HEALY.
(Oitrp'Uit (JoU/rt, 1V. D. Iowa, 1. TAX FOR SERVICE-LnUTATloN. ·
January Term, 1886.) OF EXPnu.TION-AF'FIDAvIT OF
Before the issuance of a county treasurer's deed of lands sold for taxes an that notice had been given to the owner of the expiration of the period for redemption was filed, which was defective in that the seal of the notary was not attached to the jurat. Held, that ,the defect was capable .of being remedied, and that tlle lapse offiveyears would operate as a bar to question the validity o'f the deed, under Code Iowa, § 902, providing that "action for the recovery of real property sold for non-payment of taxes must be brought'within five years from the execution of the treasUfer's deed." 2.
Code § 902, providing that ,aJ;l,action for the recovery of real estate sold for ntiu"payment of taxes must be brought within five years from the execution: of the treasurer's deed, cannot be setup as a defense to an action for tax sale, where notice of the of the period ofreredemption demption has, not been given to the actual owner of t):J.e land as reqUired by , ,,". i '
FOR REDEMPTION-LnilITATIOlj'.
.'.,
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IilEquity. ,Bill to redeem certain realty from, tl;tX sale, and to quiet, title. A. F. Call and Geo. E. Clarke, for complainant. Wright' &'FarreU j for defendant. SHIRAS, J. Complainant seeks in this cause a decree to the effect that he is en.titleq to redeem two pieces of realty from tax sales, and prays that tax :executed by the treasuretof Palo Alto county be set aside, and complainant's title be quieted thereto. The case is submitted on a stipulation setting forth the facts, froID which it appears that complainant is the owner of the fee title to the S. W. t of N. W. t of section 11, town-
the
.8LYFIELD V. HEAJ,.¥.
3
ship.97 'N,J; of range 31'W." .bffifth rprincipal,I1leiiidian,llnd theN. W. t 0l:'S.:W.h:lf'sec.tion.32rtownsh!ip94 N"ofrange31 W., of fifth prin, cipalmeridian. To the first-descxibed piece the defendant holds a tax deed, executed by the treasurer of Palo Alto county on the twenty.;.eighth day of April, 1879" and duly filed for record on the twenty-fourth day of May, 1879. To the last-described piece the dliJfendant holds a tax deed executed by the treasure1'of Palo Alto eO\J.nty on the twenty-third of July, 1877; and duly filed for record on. the twenty-sixth of J"I11y, 1877. The present proeeedingto redeem was commenced in July, 1885, more than five years after the time of recording the treasurer's deeds, above stated. From the agreed statement of facts, it appears in the years 1878 and 1879 the S. W. tof N. W. t of section 11 was taxed in name of Jl',Graham. Under the provisions of section 894 of the Code of Iowa, in order to entitle defendant to demand and the treasurer 9f Ulf' county to execute a valid tax deed of these premises, it was that the h01der of the tax certificate should serve notice upon said GI'llIham that the right of redemption would expire in 90 days. Proper proofof the service of such notice is required to be made by affidavit of the holder of' the certificate, or his. agent, the same to be filed with the treasurer. Until such notice is given, and the proper proof is filed with the treasurer, he has no right to execute the deed. In the case it is admitted that the notice was in fact given, but it appears that the affidavit of proof filed with the treasurer was defective, in that the seal of the notary was not attached to the jurat. Under the rulings made in 7'uni8v. Withrow, 10 Iowa, 307, and.8teph.em v. Williams,46 Iowa, 542, it must be held that the so-called affidavit is lacking in an essential requisite, and the proof of service was not made by affidavit, as required by the statute. It appears, however, that the treasurer did in fact execute a deed proper in form, which delivered. to defendant,and by him duly recorded, more than five years before the bringing of this suit; and defendants claim that the lapse of the five years ba:rs the right of recovery under the provisions of section 902 of the Code. In Trulock v. Bentley, 25 N. W. Rep. 824, the supreme court of Iowa, held that, when a notice of the expiration of the time of redemption had in fact been given, but the proof made thereof llndfiled with the treasurer was defective in some particular capable of being cured by ment, then':t11.e five-years limitation contained in section 902 ,was applicable. The failure to affix the seal to the jurat is a defect which may be rem' edied, it being admitted in the statement of facts that M. L. Brown, before whom the affidavit was signed, was a duly commissioned notary at that time, and that the omission to attach the seal to the jurat was by mistake and oversight, and hence the present question comes within the rule in Trulock v. Bentley. It follows that the lapse of five years operates as a bar to the right of complainant to question the validity of the deed to the S. W. t of N. W. t of section 11, and as to this quarter section complainant's bill must be dismissed.
4
FlllDEML REPORTER.
Touching the N. W. i of S. W. i of section 32, it appears that the tax deed was executed on the twenty-third of July, 1877. The notice filed with the treasurer was an affidavit showing that a notice addressed t.o one J. M. Eldridge, or the unknown owners, was published for the requisite length of time in a newspaper of Palo Alto county. The land at the time the notice was published was taxed in the name of M. Healy, the defendant. It does not appear that the land was ever taxed to Eldridge, or that he ever had any interest therein. The facts are therefore that the land was assessed in the name of the person holding the certificate of purchase; and that no notice of the expiration of the time of redemption was given to anyone except to Eldridge; and it does not appear that he had any interest whatever in the land. In fact, therefore, no notice of the expiration of the time of redemption was given, and the question is whether the fact that the land was assessed in the name of Healy, the holder of the tax certificate, will dispense with the necessity of doing that which the statute expressly requires, i. giving notice to the person in whose name the property is taxed. On the one hand, it is argued that giving notice to Healy would be a vain and useless thing, because he was the very party who was about to apply to have the deed executed, and he already knew all the notice could give him knowledge of. On the other, it is said the requirement of the statute is imperative, and, unless obeyed, the treasurer has no right to execute the deed. The spirit of the section in question is to provide that the right of redemption shall not be lost to the owner of the land until he has had 90 days' notice of the faet that the time of redemption is drawing to an end. The letter of the section requires service of the notice upon the person in whose name the property is taxed. In the present case, the defendant does not show or claim that he has fulfilled the spirit of the section by giving notice to the actual owner, and admits that he has not fulfilled the letter of the statute. The treasurer had no right to sit in judgment upon the question whether the defendant was excused from obeying the letter of the statute. No notice was given, and, in the absence thereof, the treasurer could not lawfully execute the deed. The issuance thereof was a void act, and is not cured by the five-years limitation found in section 902. It is a defect not curable by any amendment to the papers or proofs, and, under the rule recognized by the supreme court of Iowa in Trulock v. Bentley, -the five-years limitation is not applicable. As to this quarter section, therefore, complainant is entitled to a decree entitling him to redeem said quarter section. The costs will be equally divided.
e.,
NEW ORLEANS WATER-WORKS CO.
V.
ERNST.
5
NEW ORLEANS WATER-WORKS CO. V" ERNST and others. SAME v. MAGINNIS OIL & SOAP WORltS. SAME 1.1. RuCK. SAKE 1.1. NEW ORLEANS C. & L. R. CO.1 (Circuit Oourt. E. D. LouiaianfJ. June lli.1887.)
On Rule NiRi for Injunctions. J. R. Beckwith, for complainant. B. Frank Jonas and J. O. NiaxYn, Jr., for Ernst & Co. and Louis Ruch. W. B. Benedict, for Maginnis Oil Co. Goo. H. Braughn, Chas. F. Buck, Max Dinkel8peil, and W. O. Hart, for New Orleans C. & L. R. Co. BILLINGS, J. Two questions are presented in addition to those alread.y passed upon by former decrees in this court: 1. Whether an injunction shall issue when the complainant has no mains, or no adequate mains, for the delivery of water in sufficient quantities for the wants of the defendants. This question must be an· flwered in the negative, from the very title of the act under which the complainants claim, which is as follows: "No. 33. An act to enable the city of New Orleans to promote the public health, and to afford greater security against fire, by the establishment of a corporation to be called the 'New Orleans Water-Works Company,'" etc. It cannot be that it was the intention of the legislature to deprive any person of, or:to limit any person in, the use of water by the exclusive right given to complainant. The object of the grant, and the creation of the water· works corporation, was to furnish, and not deprive of, water. The clause in complainant's charter which requires it to lay mains in streets whenever the water rates in any street of petitioners amount to 10 per cent. per annum of the cost of laying mains, was intended to give the citizens an additional right, and by no means takes away their 1 Reported
by Joseph P. Hornor, Esq., of the New Orleans bar.