So far, therefore, as this point is concerned, it must be
considered as settled.
But the court further held that the limitation began to run at
the time of the execution and recording of the tax deed,
irrespective of the question of adverse possession, so that if at
any time during the period of five years, no matter how near its
close, the former owner takes actual possession and holds until the
expiration of the five years from the date of the execution and
recording of the tax deed, the right of the purchaser at the tax
sale is completely barred.
The plaintiff in error claims that when thus construed, the
statute is in conflict with the Constitution of the United states,
first because it deprives the purchaser at a tax sale of his
property without due process of law, and second because it impairs
the obligation of the contract of purchase, of which the statute in
force when it was made forms a part. Art. 5, Amendments to the
Constitution, and sec. 10, art. 1.
The argument of the plaintiff in error is that the purchaser
Page 102 U. S. 656
at a tax sale cannot bring suit to recover the land purchased by
him until the former owner, or some one else, takes adverse
possession, and as no such possession may be taken until just
before or even after the expiration of the five years, his right to
the land is cut off without giving him his day in court, and the
obligation of the contract contained in his deed, and the law under
which it was executed, is impaired.
We do not think that the premise from which this conclusion is
drawn is true in point of fact, nor, if it were, that the
conclusion would follow.
The Iowa statute (Rev. 3601; Code, 3273) declares that
"An action to determine and quiet the title of real property may
be brought by any one having or claiming an interest therein,
whether in or out of possession of the same, against any person
claiming title thereto though not in possession."
The Supreme Court of Iowa in this case held that the bringing of
an action under the section first quoted would be an action for the
recovery of the property, and would interrupt the running of the
five years' statute of limitation.
Barrett v. Love, 48 Ia.
103.
The fact, therefore, that the lands are unoccupied during the
five years succeeding the execution and recording of the tax deed
is no obstacle to the bringing of a suit which would interrupt the
running of the limitation.
But even if no such action could be brought, we think that the
purchaser at a tax sale is not deprived of any of the rights
conferred on him by his purchase and deed by reason of the
construction put upon the five years' statute of limitation.
The right of the legislature to prescribe what shall be the
effect of a tax sale and deed cannot be questioned. The Legislature
of Iowa, in the enactments brought to our notice in this case, has
exercised that right with great liberality to the purchaser at the
tax sale. It has made his deed presumptive evidence of certain
facts and conclusive evidence of others; it has declared that it
shall vest in him all the estate of the former owner and of the
county and state in the premises. But it has also declared in
effect that the deed shall not support an action for the recovery
of the land unless the suit
Page 102 U. S. 657
therefor is brought within five years after the treasurer's deed
is executed and recorded. When, therefore, the purchaser at a tax
sale receives the treasurer's deed, he takes it with all the
advantages and disadvantages incident thereto. He knows precisely
its effect and what he must do to protect his title under it, for
all this is plainly written in the law. If there should turn out to
be an insuperable obstacle to his establishing his title to
unoccupied lands, he cannot complain, for the whole subject was
under the legislative control, the rules affecting his title were
proclaimed in advance, and he bought with his eyes open. He took
the risk of being able to make his deed effectual under the rule
prescribed by the legislature. He gets all he bargained for. So
that when the statute of limitation cuts him off, he having, as he
imagined, been unable to bring his suit for want of a party in
adverse possession, he has been deprived of no right which he ever
possessed.
The legislature might have declared that the title of the
purchaser at the tax sale should be divested without his consent by
the repayment to him within a prescribed period, by the former
owner, of the amount of his bid or the tax and the interest and
penalty thereon. The right to redeem the title of lands sold for
taxes is one commonly reserved, and the right is favored by the
policy of the law.
Dubois v.
Hepburn, 10 Pet. 1;
Corbett v.
Nutt, 10 Wall. 464;
Gault's Appeal, 33
Pa.St. 94;
Rice v. Nelson, 27 Ia. 148;
Schenk v.
Peay, 1 Dill. 267;
Masterson v. Beasley, 3 Ohio 301;
Jones v. Collins, 16 Wis. 594;
Curtis v.
Whitney, 13 Wall. 68. But it would scarcely be
contended that such statute deprived the purchaser of his property
without due process of law or impaired the obligation of his
contract of purchase.
But under the Iowa law, the purchaser at a tax sale who can find
no one in possession against whom to bring his suit has a plain way
to make his title indefeasible, and that is by taking possession
himself.
When the section prescribing the effect of the treasurer's deed
and that prescribing the five years' limitation are considered
together, the policy of the law is plain, and no cause of complaint
is left the purchaser at tax sale. The effect of the two sections
is this -- that the party holding under the tax
Page 102 U. S. 658
deed must within five years either himself take actual
possession of the property, or within the same period bring a suit
to recover possession, and, upon his failure to do either, his
action upon his deed shall be barred.
When thus considered, the law violates no contract and deprives
the purchaser at the tax sale of no estate or property to which he
had a right. He bought subject to a condition, with explicit
warning that if he did not comply with it, his deed should become
ineffectual to support an action. Failing to perform the condition,
he is left without remedy, but also without just ground for
complaint.
We see no error in the record.
Judgment affirmed.