The Oskaloosa herald. (Oskaloosa, Mahaska County, Iowa) 1885-1919, 1908-07-23
AN IMPORTANT
IOWA DECISION
TAX DEED DOES NOT DESTROY
WIDOWS DOVER IN LAND.
CASE CAME FROM MoNrEzUMA.
Question Settled for the First Time
ny the Supreme Court = May
Effect Many Land
Titles.

Montezuma, July 14.--Attorney X,
j. Smith of this city has just received
notification of an important decision
in the case of Phoebe A. Lucas VS..
Annie l., Purdy, in which case Mr..
Smith appeared as attorney for the
plaintiff, Mrs. Lucas, in the action
which was commenced some time ago
in Tama county of this state.
The undisputed facts are that Col.
Edward w. Lucas entered the land in
question from the United States gov
eminent on November 2, 1853, togetb,
er with many other tracts of land in
other parts of this state, and that he
never decided this tract to anyone,
nor was 1t ever sold on execution
or judicial sale, but in the year 1858
said tract was sold for the taxes
against it for the year 1867 and in the
year 1871, no redemption having been
made from this tax sale, deed was
issued to S. M. Beeson, who left the
land by will to the defendant, Mrs.
, Purdy, who has been in possession
thereof for many years.
Edward w. Lucas was a married
man during his ownership of this land
and the title was not in his wife'a
name, but was held in his own name
Mrs. Lucas probably did not know
the descriptions of all the land then
held by he husband, nor on what
lands he had paid taxes, nor upon what
4" Is he had failed to pay taxes; and
4 he had known of h inability
i = refusal to pay same 8 e would
Z III have been unable to protect her,
BECAUSE OF lack of funds of her
NByGol Luca, L j recently leaving his
f/ie SURFING him and she COM
menced this action to recover the
one-third of said premises. To this
petition the defendant, by her attor
neys, raised the question of the legal
force and effect of a valid tax sale
and deed Hereunder. Defendant
claimed that whenever land is sold
for taxes under proceedings which are
regular and valid, and afterwards q
deed hereunder is issued to the pur
chaser, that such sale and deed have
the effect to pass to the grantee a
new and independent title and one
whic is in no way derivative from
or dependent upon any prior titles or
equities, and cited several cases which
she claimed made her position ilrm.
Plaintiff maintained that this question
had never been decided in Iowa and
that no case cited by defendant was
decisive of the question at issue;
and further argued that the law then
in force and which is now in force
is as follows: One-third in value OIL
all the legal or equitable estates in
real property possessed by the hus-
band at any time during the marriage,
which have not been sold on execution
or other judicial sale, and TO which
the wife had made no REIMBURSEMENT
of her right, shall be set apart as her
property in fee simple, if she survive
him. Plaintiff also claimed that In
Iowa the wife is under no obliga.
ton whatever to pay the taxes a
gainst her husbands lands, and that,
unless she is by statute bound to see
TO it that he pays such taxes, the tax
sale does not affect her contingent
right 1t also appears that the leg.
islature fixed the rights of the sur.
viving widow after, and with full
knowledge Of the provisions of the
xrh inh
defined it pointed out the manner by
which she could acquire dover, and
also pointed out the methods-(plain-
tiff says the only methods)-by which
her dover right could be barred or
cut off.
In the above case defendant was the
loser and decree was rendered in favorl
of plaintiff awarding her one-third inl
value of said real estate, and in thel
opinion handed down by the court,
after referring to other states which,
have statutes like that of Iowa and
which states declare the widows right
unaffected by tax sale says, "The same
may be said of the statute of Iowa pre-
scribing the method or means by which
dover may be Invested or extinguish-
ed; the legislature of this state has
not yet seen fit to declare that a wife S
inchoate interest shall be Invested
by a tax sale and deed; and 1t ap.
pears to me to be little short of judi
cial legislation for the courts to en-
graft that provision upon the statute
The court also found that the cases
cited and relied upon by defendant
were not applicable or decisive of
the principle of law involved. This
decision therefore holds in effect that
purchaser at a tax sale takes titlel
subject to the right of dover of the
wife who during coverture is defense
less and without any protection.
The above decision is apparently
based upon the same reasoning which,
has prompted examiners of titles for
the big insurance and loan companies
to place but little confidence in a titleI
based solely upon tax title; the usual
requirement of these title lawyers be-
ing that a quit claim deed should bel
obtained from the persons whose in
terests were sold at the tax sale, orI
Al. -