IN THE COURT OF APPEALS OF IOWA

No. 14-0477

Filed February 11, 2015

ADAIR HOLDINGS, L.L.C., A Nebraska 

Limited Liability Company,

Plaintiff-Appellee,

vs.

ROGER P. ESCHER, MARY J. ESCHER,

and PERSONS IN POSSESSION,

Defendants-Appellants.

________________________________________________________________

Appeal from the Iowa District Court for Washington County, E. Richard 

Meadows Jr., Judge.

The defendants appeal from the district court’s ruling in an action to quiet 

title. REVERSED AND REMANDED WITH DIRECTIONS.

Dennis J. Mitchell and Sean W. Wandro of Meardon, Sueppel & Downer, 

P.L.C., Iowa City, for appellants.

John T. Clendenin and Colin C. Smith of Nyemaster Goode, P.C., Des 

Moines, for appellee.

Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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DANILSON, C.J.

Roger and Mary Escher appeal from the district court’s ruling in an action 

to quiet title, initiated by Adair Holdings, L.L.C. The Eschers maintain the

affidavit of service was defective and invalidated the tax deed. They also 

maintain the district court abused its discretion by allowing the plaintiff to amend 

the pleadings at the commencement of trial. Finally, they contend they are 

entitled to equitable relief.

We conclude the scrivener’s error in the notary jurat of the affidavit of 

service is not a defect that invalidates the tax deed. However, we determine the 

district court abused its discretion in allowing the plaintiff to amend the pleadings.

Accordingly, we find it unnecessary to address the Eschers’ claim for equitable 

relief. We reverse and remand with directions to dismiss without prejudice. 

I. Background Facts and Proceedings.

The Eschers failed to pay their 2007 property taxes on the land in 

question. In June 2009, a non-party, Central Properties, purchased the property 

at a tax sale auction, paid the delinquent taxes, and received a tax sale certificate 

in return. It held the tax sale certificate on the property for the one year and nine 

months, pursuant to Iowa Code section 447.9 (2009).

1

 The Eschers did not 

redeem the property during that period. On January 6, 2012, Central Properties

served a notice of expiration of the right of redemption on the Eschers.

After serving the Eschers with the notice of expiration of the right of 

redemption, Central Properties filed an affidavit of service of notice with the 

 

1 The law in effect at the time of the tax sale governs this appeal. See Iowa Code 

§ 447.14.
3

Washington County treasurer on February 10, 2012. It is undisputed the affidavit 

included an incorrect date in the jurat, listing the year as 2011 rather than 2012.

The filing of the affidavit of service of notice commenced the final ninetyday redemption period, pursuant to Iowa Code section 447.12. The Eschers did 

not redeem the property during the ninety days.

On May 10, 2012, Central Properties assigned its interest in the tax sale 

certificate to Adair Holdings, L.L.C., the plaintiff in this matter. The next day, the 

plaintiff obtained a tax deed to the property and recorded it in accordance with 

the law.

On July 16, 2012, the plaintiff filed a quiet title action against the Eschers. 

The second paragraph of the pleadings contained an incorrect legal description 

of the property, describing a totally different parcel of land. The correct legal 

description was contained in the attachments to the petition, which included the 

tax deed, the tax sale certificate, and the previously served notice of right to 

redemption.

The case was tried to the district court on October 8, 2013. At the outset 

of the trial, the Eschers moved to dismiss the plaintiff’s petition because of the 

incorrect legal description in the pleadings. In response, the plaintiff moved to 

amend the petition to correct the legal description, and the district court granted 

the motion to amend. 

The district court issued its findings of fact, conclusions of law, and ruling 

on February 11, 2014. The court ruled in favor of the plaintiff, and the Eschers

appeal.
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II. Standard of Review. 

We review the district court’s ruling in a quiet title action de novo. 

Stecklein v. City of Cascade, 639 N.W.2d 335, 336 (Iowa 2005). We give weight 

to the district court’s findings, but we are not bound by them. Id.

We review the trial court’s ruling on a motion to amend pleadings for an 

abuse of discretion. See Rife v. D.T. Corner, 641 N.W.2d 761, 766 (Iowa 2002). 

We will find an abuse of discretion when the court bases its decision on clearly 

untenable grounds or to an extent clearly unreasonable. Id.

III. Discussion.

A. Affidavit of Service.

The Eschers maintain the affidavit of service regarding service for the 

notice of right of redemption was defective. Specifically, they maintain the notary 

portion of the document is incorrectly dated, amounting to a defect that

invalidates the tax deed.

Iowa Code section 447.12 provides, in part, “Service is complete only after 

an affidavit has been filed with the county treasurer, showing the making of the 

service, the manner of service, the time when and place where made, under 

whose direction the service was made, and costs incurred as provided in section 

447.13.” This section is “to be strictly construed in favor of the taxpayer.” 

Pendergast v. Davenport, 375 N.W.2d 684, 688 (Iowa 1985). If the affidavit of 

service “is incomplete or insufficient, the right of redemption is not cut off and no 

valid tax deed can be issued.” Id. “[T]he courts are universally inclined to hold 

the tax purchaser to a strict compliance with all the statutory provisions by which 
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the right of redemption is to be foreclosed.” Wood v. Yearous, 140 N.W. 362, 

364 (Iowa 1913). 

However, there is no statutory requirement regarding the jurat of the 

affidavit. Here, the affidavit of service correctly stated the making of service, the 

manner of service, the time and place where made, under whose direction it was 

made, and the costs incurred. Although the affidavit of service is incorrectly 

notarized as February 8, 2011, rather than February 8, 2012, the affidavit meets 

all of the statutory requirements set forth in section 447.12. The district court 

found the scrivener’s error contained in the jurat did not invalidate the tax deed. 

We agree. The notary testified that it was a scrivener’s error and the date should 

have been February 8, 2012. An error in the date is an amendable defect that 

does not render the affidavit void. See Weeks v. Nationwide General Ins. Co., 

500 S.E.2d 620,623 (Ga. Ct. App. 1998); see also Stone v. Miller, 14 N.W. 781,

785 (Iowa 1882) (concluding it was proper to amend affidavits to correct an 

omission and clerical error; Dalbey Bros. Lumber Co. v. Crispin, 12 N.W.2d 277, 

279 (Iowa 1943) (holding the essential purpose of affidavit is to show the affiant 

was sworn by recitals). Because the Eschers do not allege the body of the 

affidavit failed to comply with sections 447.12 and 447.13, or that it was sworn, 

we find no error. 

B. Motion to Amend.

The Eschers also maintain the district court abused its discretion by 

granting the plaintiff’s motion to amend the pleadings at the commencement of 

the trial. Specifically, the Eschers contend that allowing Adair Holdings to amend 

the pleadings to show the correct legal description of the land in question, a 
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different parcel, significantly changed the course of the litigation and substantially 

altered their defense strategy. The Eschers also rely upon Iowa Code sections 

694.2 and 694.3, which require the premises to be accurately described in the 

petition and the notice. 

A trial court has considerable discretion in ruling on motions for leave to 

amend pleadings. Rife, 641 N.W.2d at 766. Amendments may be allowed at 

any time before the case is finally decided, even after completion of the 

evidence. Ackerman v. Lauver, 242 N.W.2d 342, 345 (Iowa 1976). “As long as 

the amendment does not substantially change the issues or defense of the case, 

the court should permit the amendment.” Rife, 641 N.W.2d at 767. In fact, 

“[e]ven an amendment that substantially changes the issues may still be allowed 

if the opposing party is not prejudiced or unfairly surprised.” Id. 

The district court’s written response to the defendants’ resistance to the 

plaintiff’s motion to amend stated:

. . . . The issues presented in the case are not substantially 

changed by the amendment. Although the legal description of the 

property involved would change, the underlying issues and cause 

of action would remain the same. Even if the amendment could be 

regarded as substantially changing the issues of the case, 

Defendants cannot seriously argue they were prejudiced or unfairly 

surprised by Plaintiff’s proposed amendment Attached to the 

Petition were the Tax Deed, the Certification of Purchase from the 

Washington County tax sale, and the Notice of Expiration of Right 

of Redemption. Both the Tax Deed and the Notice of Expiration of 

Right of Redemption contained the correct legal description. 

Additionally, the Certificate of Purchase from the Washington 

County tax sale contained a correct abbreviated legal description, 

the VIN number of the property, and a parcel number particular to 

the property at issue.

Defendants came to trial adequately prepared to dispute 

Plaintiff’s claim to the property bearing the correct legal description. 

In fact, all evidence presented at trial, from both sides, relates to 

the real property with the proper legal description. No evidence 
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was presented relating to the real property with the legal description 

listed in paragraph two of Plaintiff’s Complaint. Further, Defendants 

did not ask for additional time to prepare due to surprise or 

prejudice, or even argue that they were surprised. CF. Ackerman, 

242 N.W.2d at 345 (finding that trial court did not abuse its 

discretion in granting leave to amend where party claiming surprise 

and lack of opportunity to defend because of proposed amendment 

did not ask for a continuance to eliminate those problems.)

After reviewing the record, we disagree. We believe a quiet title action 

that references the wrong parcel of land as opposed to a minor correction or 

typographical error, substantially changes the issues in such a proceeding. We 

think the pleading and notice were deficient to the extent the motion should have 

been denied. 

First, we are not convinced a motion to amend alleviates the failure to give 

notice of the action containing an accurate description of the property. See Iowa 

Code § 649.3 (“The notice in such action shall accurately describe the property, 

and, in general terms, the nature and extent of the plaintiff’s claims, and shall be 

served as in other cases.”). We assume our legislature intended to require 

ample notice to a defendant facing a quiet title action involving his or her real 

estate interests or claims by specifically reciting what should be in the notice. 

Here, the notice to quit recites the wrong description, and the original notice fails 

to include any of the requirements of section 649.3. 

Secondly, our supreme court has noted that although a particular property 

description is generally not required in a petition, a statute may require it. 

Hagenson v. United Tel. Co. of Iowa., 164 N.W.2d 853, 858 (Iowa 1969)

(concluding a petition alleging trespass was not fatally descriptive for failing to 

reasonably describe the property). Here, section 649.2 requires a description “as 
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accurately as may be.” “[A] description is bad which is uncertain, erroneous, or 

misleading.” Hangenson, 164 N.W.2d at 858. The petition filed in this action 

was both erroneous and misleading because the petition and its attachments 

referenced two different parcels. 

Third, we are not convinced that Adair Holdings was entitled to move to 

amend the petition particularly where it admits the legal description was in error. 

It is axiomatic and fundamental law that the “plaintiffs must secure a decree 

quieting their title on the strength of their own title and not on the weakness of the 

adversary.” Reutter v. Middlebrook, 131 N.W.2d 817, 820 (Iowa 1964). Further, 

Iowa Code section 649.1 states that a quiet title action “may be brought by 

anyone whether in or out of possession, having or claiming interest therein.”

(emphasis added). Thus, the plaintiff must claim an interest in the property 

identified in the petition and, to succeed, must rely on the strength of their own 

title. Where the wrong parcel is described in a quiet title petition, did Adair 

Holdings even have an interest in the property identified in the petition? If Adair 

Holdings did not have any interest in the property identified in the petition and 

upon which this action was initiated, how may we say they are entitled to amend 

the petition? Again, we may reach a different result if the description error was 

insubstantial or simply a minor typographical error.

We conclude, because this was a quiet title action and the petition 

described the wrong parcel of land, the issues were substantially changed. 

Moreover, the notice did not comply with Iowa Code section 649.3. Under these 

facts and for the reasons given, we are unable to conclude the motion to amend 

was properly granted because of lack of prejudice, unfair surprise, or the failure 
9

to seek a continuance. Accordingly, we conclude the district court abused its 

discretion in granting the plaintiff’s motion to amend.

IV. Conclusion.

We find the scrivener’s error in the notary jurat of the affidavit of service is 

not a defect which invalidates the tax deed, but the district court abused its 

discretion in allowing the plaintiff to amend the pleadings. Accordingly, we need 

not address the Eschers’ claim for equitable relief. We remand with directions to 

the district court to enter an order in compliance with this ruling and granting the 

Eschers’ motion to dismiss. However, the dismissal shall be without prejudice. 

Costs shall be assessed to the plaintiff.

REVERSED AND REMANDED WITH DIRECTIONS.