# Barrett v. Holmes

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United States Supreme Court
102 U.S. 651
Barrett v. Holmes
ERROR to the Supreme Court of the State of Iowa.
This was an action for the recovery of real property, brought by the plaintiff in error Aug. 28, 1874, in the Circuit Court of Mills County, in the State of Iowa. He relied on a tax title based on the deed of the county treasurer to one Meads, dated Jan. 6, 1868, and recorded on the 28th of the same month; a deed from Meads to one Callanan, dated Feb. 1, and recorded March 12, 1873; and a deed from Callanan to himself, dated July 25, and recorded Aug. 3, 1874.
The defendant claimed under a bond for a deed, given by those who held the patent to the land. The bond was dated Feb. 12, 1872.
The law of Iowa prescribes how the deed of the treasurer or tax-collector for lands sold for taxes shall be executed, and its effect, as follows:--
'The deed shall be signed by the treasurer in his official capacity, and acknowledged by him before some officer authorized to take acknowledgments of deeds, and when substantially thus executed and recorded in the proper record of titles for real estate, shall vest in the purchaser all the right, title, interest, and estate of the former owner in and to the land conveyed, and all the right, title, interest, and claim of the State and county thereto, and shall be presumptive evi ence in all the courts of this State, in all controversies and suits in relation to the rights of the purchaser, his heirs and assigns, to the land thereby conveyed, of the following facts: that the real property conveyed was subject to taxation for the years stated in the deed, &c., and shall be conclusive evidence of the following facts: that all things whatever required by law to make a good and valid sale, and to vest the title in the purchaser, were done,' &c. Iowa Rev. 784; Code, 807.
The following statute of limitation was in force in Iowa when the tax deed under which the plaintiff in error claimed bore date, and when the suit was brought:--
'No action for the recovery of real property sold for the non-payment of taxes shall lie, unless the same be brought within five years after the treasurer's deed is executed and recorded as above provided (Rev. 784; Code, 807): Provided, that where the owner of such real estate sold as aforesaid shall, at the time of such sale, be a minor, or insane, or convict in the penitentiary; five years after such disability shall be removed shall be allowed such person, his heirs or legal representatives, to bring such action.' Iowa Rev. 700; Code, 902.
The defence was the limitation of five years prescribed by the statute above quoted.
Upon the trial of the cause in the State Circuit Court, the jury returned special findings, from which it appeared that Love, the ancestor, who was the only defendant when the suit was brought, and who had died after its commencement, took possession of the land in controversy in March, 1872, and continued in possession until the trial, in November, 1875, and that the parties who during that period held the tax title to the land had no knowledge of such possession until June, 1874. The land was unoccupied and unimproved until the possession taken by Love.
There was a general verdict for the defendant, upon which judgment was entered.
The plaintiff appealed to the Supreme Court of the State, where he claimed that upon the conceded facts of the case, as above recited, and the findings of the jury, the five years' Statute of Limitations above quoted did not begin to run until there was an adverse possession of the land by the former owner or one claiming under him, and that if not thus construed the statute was in conflict with the Constitution of the United States.
The Supreme Court of Iowa found that the constitutional question was involved, but upheld the statute, and affirmed the judgment of the State Circuit Court. This writ of error is prosecuted to reverse that judgment.
Mr. George G. Wright for the plaintiff in error.
The ruling of the court below, that the Statute of Limitation of five years began to run from the time the treasurer's deed was executed and recorded, irrespective of the question of adverse possession, and that the entry of the former owner at any time before that period has expired, bars the right of the purchaser at the tax sale, is inconsistent with the language and obvious meaning of the statute and the later decisions of that court. Iowa Rev. 790; Code, 902; Peck v. Sexton, 41 Iowa, 566; Lockridge v. Daggett, 47 id. 679; Moingona Coal Co. v. Blair, 51 id. 447.
It not only deprives the plaintiff in error of his property without due process of law, but impairs the contract of purchase from the State.
Since it is a universal rule that an action for the recovery of real property, whether called 'ejectment,' or 'an action of right,' or what else, cannot be brought unless there is an adverse possession, it is clear that this action could not be brought until there was a mature right to enforce it in the proper court, and by the appropriate remedy. It follows, therefore, that under the laws of Iowa there could not be such mature right, nor was the appropriate remedy afforded, until the plaintiff's right to possession was denied, either by an actual adverse holding, or some act equivalent thereto. Blackwell, Tax Titles, 566.
A title is not barred by the mere failure to bring suit within the time limited; but there must hav been an adverse possession. Neddy v. State, 8 Yerg. (Tenn.) 249; Smith v. McCall, 2 Humph. (Tenn.) 163; Rice v. Nelson, 27 Iowa, 148; Waln v. Shearman, 8 Serg. & R. (Pa.) 357.
A right without a remedy is unknown to the law. The statute cannot begin to run until there is an entry or possession which challenges the right of the owner. In other words, the entry must unequivocally denote an intent to take or assume actual possession. Altemas v. Campbell, 9 Watts (Pa.), 28.
There can be no such thing as an acquiescence in an adverse claim which will defeat a recovery, until such claim be asserted by entry. A party relying upon the bar of the statute must show that he has held the premises, not only by a possession actual, open, and adverse, but that he has maintained it as a right resulting from an exclusive property in and dominion over them for the time limited by the statute. 3 Wash. Real Prop. 483; McNamee v. Moreland, 26 Iowa, 96; Hollenbeck v. Riley, 35 id. 105; Larum v. Wilmer, id. 244.
The tax sale under the statute had the effect of giving to the purchaser an original title, divesting all former interest in the land, and vesting in him an independent and paramount legal and equitable title in fee. By it a new and perfect title was established. This results from the authority of the State to levy taxes on property within her limits, and coerce payment by subjecting it to sale. It is one of the necessary and inherent rights of the sovereign power. Rev. 2207; Code, 1928; Atkins v. Hinman, 7 Ill. 449; Dunlap v. Gallatin County, 15 id. 7; Irwin v. Trego, 22 Pa. St. 368; Luffborough v. Parker, 16 Serg. & R. (Pa.) 351.
The formal execution and record of the tax deed which is the source of the title of the plaintiff in error being for land unoccupied, drew after it the possession, and it was unnecessary for him to bring an action, or do anything to vindicate his title or right to possession until another challenged it by entering into actual possession, or doing something in law which is equivalent thereto. Dean v. Earley, 15 Wis. 100; Parish v. Eager, id. 532; Whitney v. Marshall, 17 id. 174; Gunnison v. Hoehne, 18 id. 268.
In declaring that 'no action for the recovery of real property sold for the non-payment of taxes shall lie unless brought within five years after the treasurer's deed is executed and recorded,' the legislature could not have intended to prevent an action after the expiration of five years, in cases in which it was impossible that any measures could be taken in this form of action for the recovery within that time. The term 'recovery' implies an adverse proceeding through the medium of the law, and the action for such recovery is utterly impracticable under the Iowa statute, except where there is an actual adverse possession. The owner of the tax title being by his purchase seised of the premises, theretofore and then unoccupied, could not be divested of the possession until entry by the former owner or some one claiming title. Until then an action for the recovery did not accrue. Waln v. Shearman, supra; Jackson v. Huntley, 5 Johns. (N. Y.) 60; Jackson v. McKee, 8 id. 429.
No counsel appeared for the defendant in error.
MR. JUSTICE WOODS, after stating the case, delivered the opinion of the court.

## Notes

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